Can a lawyer campaign for, endorse, and financially support a candidate for judge, and how?

Plain-English summary

Informal Opinion 1/73 responded to inquiries about whether and how lawyers may participate in campaigns to nominate and elect trial and appellate court judges. The committee stated that it is clear lawyers not only have a right but are charged with the responsibility to inform the lay public about a judicial candidate's qualifications and to make that appraisal known to voters in a proper and dignified manner, citing former Canon 2 and the then-current EC 8-6. It noted that ABA Formal Opinion 189 permits a lawyer to endorse a judicial candidate and solicit endorsements from other lawyers when prompted by a belief in the candidate's superior qualifications rather than personal motives, and that ABA Informal Opinions 948, 817, and 744 address bar polls of judicial qualifications and the steps a lawyer may take in a nonpartisan judicial campaign.

The committee flagged limits. Disciplinary Rules 8-102(A) and (B) prohibit a lawyer from knowingly making false statements about a judicial candidate's qualifications or false accusations against a judge. Judicial candidates must observe Wisconsin Code of Judicial Ethics Rules 12 and 13, and the committee noted it was then formulating an opinion to extend those rules to lawyer candidates for judicial office. It also recalled its October 1970 and February 1971 advisory opinions that an attorney may not organize, attend, or contribute to a testimonial dinner for a sitting judge or judicial candidate unless the event is sponsored by the bar association.

On financial support, the committee acknowledged the prohibition in DR 7-110 against giving anything of value to a judge or tribunal official, but explained that the Wisconsin Supreme Court clarified in Code of Judicial Ethics Rule 8 that the rule does not prohibit reasonable financial contributions to a voluntary campaign committee on behalf of a judicial candidate, given the expense of nonpartisan judicial elections. ABA Formal Opinion 226 likewise permitted lawyers to contribute to judicial campaigns, even where the lawyer is likely to appear before the judge, and suggested contributions be made to a campaign committee rather than to the candidate. The committee described its opinion as a summary of the principal ethics provisions and opinions, not an attempt to set out a lawyer's legal responsibilities in such campaigns.

Currency note

This opinion was issued in 1973, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code of Professional Responsibility (Canon 2, EC 8-6, DR 7-110, DR 8-102) together with the then-current Wisconsin Code of Judicial Ethics (Rules 8, 12, 13). The current counterparts are SCR 20:8.2 / Model Rule 8.2 (statements about and conduct of judicial candidates) and SCR 20:3.5 / Model Rule 3.5 (impartiality of the tribunal; gifts to judges), with judicial-candidate conduct now governed by the Wisconsin Code of Judicial Conduct (SCR Chapter 60). 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 endorse a candidate for judge?

A: Under this opinion, yes. The committee cited ABA Formal Opinion 189 for the view that a lawyer may endorse a judicial candidate and solicit endorsements when motivated by the candidate's superior qualifications.

Q: Can a lawyer contribute money to a judicial campaign?

A: Yes, within limits. The committee explained that, under Code of Judicial Ethics Rule 8, reasonable contributions to a voluntary campaign committee are permitted, and ABA Formal Opinion 226 allowed such contributions even where the lawyer is likely to appear before the judge.

Q: What may a lawyer not do in a judicial campaign?

A: Under DR 8-102, a lawyer may not knowingly make false statements about a candidate's qualifications or false accusations against a judge, and may not give anything of value directly to a judge as barred by DR 7-110.

Background and rules framework

The opinion summarized former Canon 2, EC 8-6, DR 7-110, and DR 8-102 of the Code of Professional Responsibility, along with Wisconsin Code of Judicial Ethics Rules 8, 12, and 13. The current counterparts are SCR 20:8.2 / Model Rule 8.2 and SCR 20:3.5 / Model Rule 3.5, with judicial conduct governed by the Wisconsin Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.2 / SCR 20:8.2 (judicial and legal officials; candidates); former Canon 2, EC 8-6, DR 8-102
• Model Rule 3.5 / SCR 20:3.5 (impartiality of the tribunal; gifts to judges); former DR 7-110

Cases:

• Axel v. State Bar, 21 Wis. 2d 661, an integrated state bar may poll its members on a judicial nominee's qualifications

Other opinions cited:

• ABA Formal Opinion 189: endorsing judicial candidates and soliciting endorsements
• ABA Formal Opinion 226: lawyer contributions to judicial campaign committees
• ABA Informal Opinions 744, 817, 948: judicial-campaign activity and bar polls

See also

• WI Ethics Op. E-73-4: Attorney Judicial Candidates
• WI Ethics Op. E-72-1: Local Bar Judicial Endorsement Programs
• WI Ethics Op. E-71-1: Testimonial Dinners for Judges and Judicial Candidates

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/I-1-73.pdf