In August of 2019, a South Carolina Supreme Court charged a Charleston-area attorney with “moonlighting” as a private lawyer for dozens of clients while still an active law firm member. The attorney ended up paying $35,000 to resolve the financial differences between him and his firm.
The court directed him to complete a legal ethics class and attend classes on lawyers’ trust accounts. The attorney noted that “he did not hide his moonlighting” but conceded that it would have been better if he had discussed his plan to moonlight with his firm and sought clearance before doing it.
It’s no secret that moonlighting comes with many benefits like extra money, fallback security, and even new skills. The attorney chose to moonlight as a lawyer in the story above, but many moonlighters choose an unrelated work field.
The New York Times reported about one attorney who worked after hours at a funeral home, another taught dance, and many others have waited tables. However, if lawyers choose to moonlight, it’s best to discuss this with their firm before branching off to avoid a breach of contract and other liabilities.
From an employer standpoint, allowing moonlighting is probably the best way to avoid conflicts with the law. It’s illegal to ban moonlighting in many cases as state and local regulations limit how much an employer can interfere with an employee’s off-duty time.
The pros of moonlighting
There are some benefits to both lawyers and firms:
- Having the freedom to pursue side work can result in more satisfaction on a personal level.
- Allowing moonlighting may keep firms in compliance with the law depending on how restrictive their moonlighting policy is.
- Allows attorneys to make extra income relieving the pressure on both the firm and attorney – and can potentially keep a valuable attorney at a firm that would have otherwise left for increased pay.
- Moonlighting can extend your network, which can benefit both yourself and your firm.
The cons of moonlighting
Moonlighting involves liability risks. In most moonlighting cases, it’s improbable for lawyers to escape personal liability if something goes wrong with a client. The chances are that a firm will claim its insurance does not cover the moonlighting lawyer and will be left to fend for themselves financially.
In addition to liability issues, moonlighting can come with disciplinary risks if not done properly. Depending on where a lawyer practices, it may be the case that an attorney representing clients on the side for personal benefit while employed full-time by a law firm is considered to be engaged in dishonesty if he/she fails to disclose the side practice to the firm and receive permission to retain his/her own clients.
In Maryland Atty Grievance Comm’n v. Carithers, 421 Md. 28 (2011), the moonlighting lawyer’s deposit of funds from clients into his personal account constituted theft, a criminal violation Rule 8.4(c), which in this case resulted in disbarment.
Get moonlighting insurance
The first thing any attorney considering moonlighting should do is talk to their firm about it and disclose the plan. Some firms even carry their own moonlighting insurance for their attorneys. If a lawyer does pursue moonlighting, but the firm does not provide coverage, lawyers will need moonlight insurance coverage.
McGowan Program Administrators provides moonlighting insurance coverage for both individuals and law firms.