Can a lawyer running for judge keep their membership and offices in a political party during the campaign?

Plain-English summary

Opinion E-88-3 asked whether a nonincumbent candidate for judicial office may retain his or her membership and office(s) in a political party during the campaign. The committee answered no. It relied on SCR 20:8.2(b), which requires lawyers who are candidates for judicial office to comply with the applicable provisions of the code of judicial conduct, and on SCR 60.14 of the Wisconsin Judicial Code, which prohibits judges from belonging to or participating in a political party. The committee noted that the prohibitions in SCR 60.14 had been held applicable to nonincumbent judicial candidates even before SCR 20:8.2(b) was adopted, citing its earlier Formal Opinion E-73-4 and ABA Formal Opinion 312 (1964).

The committee added that the continued applicability of these prohibitions to nonincumbent candidates is supported by the Comment to SCR 20:8.2, which states that when a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity. The committee reemphasized that its opinions are advisory only and nonbinding, and respectfully urged the Wisconsin Supreme Court to clarify the relationship between SCR 20:8.2(b) and chapter 60 of the Supreme Court Rules to facilitate compliance with and recognition of the applicable rules of conduct for nonincumbent judicial candidates.

Currency note

This opinion was issued in 1988, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). SCR 20:8.2 and chapter 60 (the Code of Judicial Conduct), including the political-activity restrictions, have since been revised, and judicial-candidate speech and conduct rules have been affected by intervening case law. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer running for judge stay in a political party during the campaign?

A: Per the opinion, no. The committee concluded that SCR 20:8.2(b) imports the judicial code's bar on political-party membership (SCR 60.14) onto nonincumbent judicial candidates.

Q: Did the rule against political-party activity apply before SCR 20:8.2(b) existed?

A: The committee said yes, noting that SCR 60.14's prohibitions had been held applicable to nonincumbent judicial candidates even before SCR 20:8.2(b) was adopted.

Background and rules framework

The opinion interpreted SCR 20:8.2(b) / Model Rule 8.2 (judicial and legal officials; conduct of candidates for judicial office) by cross-reference to SCR 60.14 of the Wisconsin Code of Judicial Conduct, which restricts political-party involvement by judges.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:8.2(b) / Model Rule 8.2 (candidates for judicial office)
• Wis. SCR 60.14 (Code of Judicial Conduct; political activity)

Other opinions cited:

• Wisconsin Formal Op. E-73-4; ABA Formal Op. 312 (1964)

See also

• WI Ethics Op. E-90-2: Advertising Public Office or License
• WI Ethics Op. E-88-2: Prosecutor's Conflicts With Kin

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-88-3.pdf