Can a solicitor have two jobs?

Solicitors are not immune to the cost-of-living pressures of our modern world, so it is not surprising to find more and more considering the viability of a side hustle. Especially with the growing ease with which things can be done virtually!

For those solicitors who have considered taking on another job, were not sure whether they could do so and decided to give the Law Society a call – bravo! It means you gave pause to reflect on the potential regulatory and/or ethical issues that may arise.

As with any question that is asked of lawyers, the answer is not straightforward. In this case, it depends on the types of jobs in question and how the solicitor intends to conduct each. In any case, it comes down to knowing how the NSW legal profession legislation applies to your circumstances. Here are some important points to consider:

Obligations to your current employer

First of all, you need to make sure that you are not contractually or otherwise prohibited from seeking second employment. Review your employment contract and any relevant company policies to ensure you won’t be in breach by accepting an offer for another role.  You may need to seek the consent of your current employer.

The nature of second employment

What type of work will you be performing in your new, second role? If you are considering being a solicitor for two organisations, for example, you are an in-house lawyer and you also want to consult a private law practice as an independent contractor, be very mindful of:

• the conditions of your practising certificate. There are different categories of practising certificate provided under Legal Profession Uniform Law, and each category has different conditions attached. In taking up any second employment as a solicitor, you need to make sure you are not in breach of the conditions of your practising certificate. For a detailed summary of NSW practising certificate conditions, refer to our Solicitors cheat sheet to practising certificate conditions.
• your ethical obligations set out in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Conduct Rules), particularly those concerning confidentiality and avoiding conflicts set out in Rules 9, 10 and 11. If you cannot satisfy yourself of your ethical obligations as a solicitor, then you simply cannot pursue the second role.

If the other job you are considering is worlds away from the one you occupy as a lawyer, then the issue of conflicts between current or former clients will not an issue, but there is still Conduct Rule 12 to consider – conflicts concerning a solicitor’s own interests.

Let’s say a solicitor wants to set up a real estate agency and refer clients to his law firm. As a real estate agent, the solicitor has an interest in the sales going through. But what if, when acting as lawyer for his vendor client, he identifies legal issues with the sale, such that it would be in the client’s best interest to hold off selling? In this situation, the solicitor will likely have a conflict under Conduct Rule 12. Note that, under Conduct Rule 12, a solicitor not only has to be mindful of his or her own conflicts with clients, but also those between clients and his or her associates.[1]

For any solicitor considering setting up a non-legal business on the side, pay attention to the requirements of Rule 8 of the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 (Practice Rules). Your involvement in any separate non-legal business must not likely impair, or conflict with, your duties as a solicitor to your clients.[2] If your ability, as a solicitor, to service your client’s best interests is reasonably likely to be affected by your interest in the other business, then you must cease to act for the client.[3] Best to keep the two businesses as separate as possible!

Be mindful also of Conduct Rule 5, which concerns the conduct of solicitors in the course of legal practice or otherwise. Whether you are acting in your capacity as a solicitor or as the founder of a new line of stationery products, you must not do anything that is likely, to a material degree, to be prejudicial to, or diminish the public confidence in, the administration of justice,[4] or bring the profession into disrepute,[5] or that would demonstrates that you are not a fit and proper person to practise law.[6]

How and where the work will be done

These are also important considerations because, where legal services are provided on the same premises as non-legal services, solicitors have an obligation to ensure that clients receiving legal services are clearly informed about the nature and the terms of the services being provided to them by the solicitor.[7] Conduct Rule 39 says that:

39.1  Where a solicitor or law practice—

39.1.1  shares an office with or is otherwise affiliated with an entity or business engaged in another calling to provide services other than legal services to a client, and

39.1.2  a client is receiving services concurrently from both the law practice and the other entity,

the solicitor or law practice, as the case requires, must take all reasonable steps to ensure the client is clearly informed about the nature and the terms of the services being provided to the client by the solicitor or law practice, including (if applicable) that the services provided by the other entity are not provided by the solicitor or law practice as legal services.

Proper records management is crucial in legal practice, so it goes without saying that it is all the more important where a solicitor conducts a separate business. Practice Rule 8 requires solicitors who engage in the conduct of another business concurrently with their legal practice, to maintain separate and independent files, records and accounts in respect of the legal practice and the other business.[8]

These are fundamental regulatory and ethical considerations if you are thinking about taking up another job or dipping your toes in waters beyond the legal profession. The Law Society’s Professional Support Unit provides free and confidential guidance to all solicitors regarding their obligations under the Legal Profession Uniform Law in the areas of costs, ethics and regulatory compliance. Enquiries can be made to PSU by telephone, email, or in person.

Costs: costs@lawsociety.com.au or (02) 9926 0116

Ethics: ethics@lawsociety.com.au or (02) 9926 0114

Regulatory Compliance: regulatory.compliance@lawsociety.com.au or (02) 9926 0115

[1] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rule 12.1.

[2] Legal Profession Uniform Legal Practice (Solicitors) Rules 2015, rule 8.1.1.

[3] Ibid, rule 8.1.4.

[4] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rule 5.1.2(i).

[5] Ibid, rule 5.1.2(ii).

[6] Ibid, rule 5.1.1.

[7] Ibid, rule 39.

[8] Legal Profession Uniform Legal Practice (Solicitors) Rules 2015, rule 8.1.2.