Vol. 77, No. 12, December
Supreme Court Orders
The Wisconsin Supreme Court, in order 00-07, has amended SCR Chapter
60 - Code of Judicial Conduct and, in order 04-07, has scheduled a
public hearing on Feb. 17, 2005, regarding the Ethics 2000 Commission
petition to amend the rules of professional conduct for attorneys.
Code of Judicial
In the matter of the Amendment of Supreme Court Rules: SCR
Chapter 60, Code of Judicial Conduct - Campaigns, Elections, Political
On Nov. 7, 2000, the court held a public hearing on the final report
filed on June 4, 1999, by the court's Commission on Judicial Elections
and Ethics on its examination of judicial campaign ethics and judges'
participation in partisan politics. The Commission's report proposed the
retention or revision of specified provisions of the Code of Judicial
Conduct, SCR chapter 60. The court considered those proposals at its
open administrative conferences on Nov. 16, 2000, Dec. 13, 2000, Jan.
10, 2001, Oct. 29, 2001, Oct. 30, 2001, Nov. 28, 2001, Nov. 10, 2003,
Jan. 28, 2004, and approved the final form of the rule on April 21,
2004. Additional discussion was held at the court's open administrative
conference on Oct. 27, 2004.
IT IS ORDERED that, effective Jan. 1, 2005, the Supreme Court Rules
are amended as follows:
SCR 60.01 (7m) and (8m) are created to read:
60.01 (7m) "Impartiality" means the absence of bias
or prejudice in favor of, or against, particular parties, or classes of
parties, as well as maintaining an open mind in considering issues that
may come before the judge.
(8m) "Judge-elect" means a person who has been
elected or appointed to judicial office but has not yet taken
SCR 60.04 (4) (f) is created to read:
60.04 (4) (f) The judge, while a judge or a
candidate for judicial office, has made a public statement that commits,
or appears to commit, the judge with respect to any of the
1. An issue in the proceeding.
2. The controversy in the proceeding.
SCR 60.06 (1g) is created to read:
60.06 (1g) Terminology. In this section, "judge" has
the meaning given in SCR 60.01 (8), except that in subs. (1r), (2), and
(4), "judge" does not include a court commissioner or a municipal judge
who did not devote 40 or more hours to the performance of his or her
official duties in the preceding calendar year.
SCR 60.06 (1) is renumbered SCR 60.06 (1m) and
amended to read:
60.06 (1m) Candidate for Office. A judge shall not
become a candidate for a federal, state, or local nonjudicial elective
office without first resigning his or her judgeship. A judge's
eligibility to serve may be governed by other rules or constitutional
Comment: Article VII, section 10 (1) of the
Wisconsin Constitution provides, "No justice of the supreme court or
judge of any court of record shall hold any other office of public
trust, except a judicial office, during the term for which elected."
See Wagner v. Milwaukee County Election Comm'n, 2003 WI 103,
263 Wis. 2d 709, 666 N.W.2d 816.
SCR 60.06 (2) is repealed and recreated to read:
SCR 60.06 (2) Party membership and activities.
(a) Individuals who seek election or appointment to the judiciary may
have aligned themselves with a particular political party and may have
engaged in partisan political activities. Wisconsin adheres to the
concept of a nonpartisan judiciary. A candidate for judicial office
shall not appeal to partisanship and shall avoid partisan activity in
the spirit of a nonpartisan judiciary.
(b) No judge or candidate for judicial office or judge-elect may do
any of the following:
1. Be a member of any political party.
2. Participate in the affairs, caucuses, promotions, platforms,
endorsements, conventions, or activities of a political party or of a
candidate for partisan office.
3. Make or solicit financial or other contributions in support of a
political party's causes or candidates.
4. Publicly endorse or speak on behalf of its candidates or
(c) A partisan political office holder who is seeking election or
appointment to judicial office or who is a judge-elect may continue to
engage in partisan political activities required by his or her present
(d) 1. Paragraph (b) does not prohibit a judge, candidate for
judicial office or judge-elect from attending, as a member of the
public, a public event sponsored by a political party or candidate for
partisan office, or by the campaign committee for such a candidate.
2. If attendance at an event described in subd. 1. requires the
purchase of a ticket or otherwise requires the payment of money, the
amount paid by the judge, candidate for judicial office, or judge-elect
shall not exceed an amount necessary to defray the sponsor's cost of the
event reasonably allocable to the judge's, candidate's, or judge-elect's
(e) Nothing in this subsection shall be deemed to prohibit a judge,
judge-elect, or candidate for judicial office, whether standing for
election or seeking an appointment, from appearing at partisan political
gatherings to promote his or her own candidacy.
Comment: The rule prohibits political party
membership and activities by judges, nonincumbent candidates for
judicial office, and judges-elect. When one becomes a candidate for
judicial office is determined by the terms of SCR 60.01 (2) which
defines "candidate" as "a person seeking selection for or retention of a
judicial office by means of election or appointment who makes a public
announcement of candidacy, declares or files as a candidate with the
election or appointment authority, or authorizes solicitation or
acceptance of contributions." The rule prohibits judicial candidates and
judges-elect as well as judges from making or soliciting contributions
to the party or its candidates and from publicly endorsing or speaking
on behalf of partisan candidates or platforms. Although the rule
contemplates the continuance of nonpartisanship on the part of Wisconsin
judges and those seeking judicial office, judges are not expected to
lead lives of seclusion. As members of the public and as public
officeholders, judges may attend public events, even those sponsored by
political parties or candidates, so long as the attendance does not
constitute the kind of partisan activity prohibited by this rule. The
judge, judicial candidate or judge-elect is responsible for so
conducting herself or himself that her or his presence at the sponsored
event is not made to appear as an endorsement or other prohibited
political activity. The judge, judicial candidate, or judge-elect should
also exercise care that the price of his or her ticket to any such event
does not include a prohibited political contribution.
SCR 60.06 (3) is repealed and recreated to read:
60.06 (3) Campaign Conduct and Rhetoric.
(a) In General. While holding the office of judge or
while a candidate for judicial office or a judge-elect, every judge,
candidate for judicial office, or judge-elect should maintain, in
campaign conduct, the dignity appropriate to judicial office and the
integrity and independence of the judiciary. A judge, candidate for
judicial office, or judge-elect should not manifest bias or prejudice
inappropriate to the judicial office. Every judge, candidate for
judicial office, or judge-elect should always bear in mind the need for
scrupulous adherence to the rules of fair play while engaged in a
campaign for judicial office.
Comment: This subsection is new. It states a rule
generally applicable to judges, candidates for judicial office, and
(b) Promises and commitments. A judge, judge-elect,
or candidate for judicial office shall not make or permit or authorize
others to make on his or her behalf, with respect to cases,
controversies, or issues that are likely to come before the court,
pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office.
Comment: This section prohibits a candidate for
judicial office from making statements that commit the candidate
regarding cases, controversies or issues likely to come before the
court. A judge or candidate for judicial office may not, while a
proceeding is pending or impending in the court to which selection is
sought, make any public comment that may reasonably be viewed as
committing the judge, judge-elect or candidate to a particular case
outcome. As a corollary, a candidate should emphasize in any public
statement the candidate's duty to uphold the law regardless of his or
her personal views. This section does not prohibit a candidate from
making pledges or promises respecting improvements in court
administration. Nor does this section prohibit an incumbent judge from
making private statements to other judges or court personnel in the
performance of judicial duties. This section applies to any statement
made in the process of securing judicial office, such as statements to
commissions charged with judicial selection.
(c) Misrepresentations. A candidate for a judicial
office shall not knowingly or with reckless disregard for the
statement's truth or falsity misrepresent the identity, qualifications,
present position, or other fact concerning the candidate or an opponent.
A candidate for judicial office should not knowingly make
representations that, although true, are misleading, or knowingly make
statements that are likely to confuse the public with respect to the
proper role of judges and lawyers in the American adversary system.
Comment: This subsection is new. The first paragraph
is based on the August 2003 amendments to the ABA model code of
The second paragraph is aspirational. Thus, "should" is used rather
than "shall." The remaining standards are mandatory and prohibit
candidates from knowingly or with reckless disregard for the truth
making various specific types of misrepresentations. Candidates are not
responsible for misrepresentations or misleading statements made by
third parties not subject to the control of the candidate, e.g., through
independent expenditures by interest groups.
SCR 60.06 (4) is repealed and recreated to read:
60.06(4) Solicitation and Acceptance of Campaign
Contributions. A judge, candidate for judicial office, or
judge-elect shall not personally solicit or accept campaign
contributions. A candidate may, however, establish a committee to
solicit and accept lawful campaign contributions. The committee is not
prohibited from soliciting and accepting lawful campaign contributions
from lawyers. A judge or candidate for judicial office or judge-elect
may serve on the committee but should avoid direct involvement with the
committee's fundraising efforts. A judge or candidate for judicial
office or judge-elect may appear at his or her own fundraising events.
When the committee solicits or accepts a contribution, a judge or
candidate for judicial office should also be mindful of the requirements
of SCR 60.03 and 60.04(4).
Comment: A judge should avoid having his or her name
listed on another's fundraising solicitation even when the listing is
accompanied with a disclaimer that the name is not listed for
Acknowledgement by a judge or candidate for judicial office of a
contribution in a courtesy thank you letter is not prohibited.
SCR 60.06 (5) is created to read:
60.06 (5) Solicitation and Acceptance of
Endorsements. A judge or candidate for judicial office may
solicit or accept endorsements supporting his or her election or
appointment personally or through his or her committee. A judge,
candidate for judicial office, or his or her committee is not prohibited
from soliciting and accepting endorsements from lawyers and others. A
judge or candidate for judicial office shall not knowingly personally
solicit or accept endorsements from parties who have a case pending
before the court to which election or appointment is sought.
Nevertheless, a judge or judicial candidate may personally solicit or
accept endorsements from the types of organizations that ordinarily make
recommendations for selection to the office. In soliciting or accepting
an endorsement, a judge or candidate for judicial office should be
mindful of the requirements of SCR 60.03 and 60.04 (4).
Comment: This subsection is new. In light of the
restrictions on campaign rhetoric under SCR 60.06 (3), the receiving of
endorsements is an important method of informing the electorate of
broad-based and presumably informed support for a particular candidacy.
As with the solicitation and acceptance of campaign contributions,
knowing solicitation and acceptance of endorsements from current
litigants are prohibited. Candidates for judicial office may solicit and
accept endorsements from entities that regularly endorse candidates,
such as newspapers and trade organizations. Neither culling nor
cross-checking of names on mailing lists or dockets is required.
SCR 60.07 is repealed and recreated to read:
60.07 Applicability. General. Subject to sub. (2),
all judges shall comply with this chapter. Candidates for judicial
office and judges-elect shall comply with SCR 60.06.
(2) Part-time Judicial Service. A judge who serves
on a part-time basis, including a reserve judge, a part-time municipal
judge and a part-time court commissioner, is not required to comply with
the following: SCR 60.05 (3) (a), (b), (c) 1b., 2.a, and c., (4) (a)
1.b., (b) (c), (d) and (e), (5), (6), (7) and (8).
Comment: Candidates for judicial office and
judges-elect are subject to the requirements of SCR 60.06.
IT IS FURTHER ORDERED that notice of this amendment be given by a
single publication of a copy of this order in the official state
newspaper and in an official publication of the State Bar of
Dated at Madison, Wis., this 29th day of October, 2004.
By the court:
Cornelia G. Clark
Clerk of Supreme Court
SHIRLEY S. ABRAHAMSON, C.J. (concurring). The impartial and
detached judge is not merely a virtuous, lofty ideal. Such a judge is
the essence of due process, the keystone of our concept of justice.
Reasonable and meaningful limits on partisan political activity are
important to preserve an independent and impartial judiciary. Since the
founding of the state, Wisconsin judicial elections have been structured
to ensure that judges remain independent, impartial, and
The wisdom of nonpartisan judicial elections and of separating judges
and judicial candidates from partisan political parties is increasingly
evident given the realities of modern partisan political campaigns,
modern partisan governance, and the nature of cases that come to the
courts. Political parties and the partisan executive and legislative
branches of government (and members thereof) are frequent litigants.
Individuals and groups take positions on cases based on (or coincidental
with) substantive positions taken by partisan political parties or
partisan candidates for office.
I view the limitations on partisan political activity in the Code as
minor inconveniences compared to the great and compelling public
interest of having judicial candidates and the judiciary demonstrate an
understanding of, and commitment to, the nonpartisan rule of law.
I similarly view SCR 60.04(6) and the comment prohibiting the use of
judges' names and their offices in fundraising activities. This rule
presents a minor inconvenience to judicial candidates compared to the
great and compelling public interest that no person feel directly or
indirectly coerced by the presence of judges to contribute funds to
My vision of the Wisconsin judiciary, adhering to long-standing
Wisconsin tradition, is to keep partisan politics out of the judiciary
and to keep the judiciary out of partisan politics.
For the reasons set forth I support the judicial code and comments as
DAVID T. PROSSER, J. (dissenting). I respectfully dissent
from some of the rule changes adopted by the court. The new judicial
campaign rules are permeated with unrealistic expectations, unreasonable
prohibitions, and inexplicable bias. They are not narrowly tailored to
serve compelling and viable policy objectives, see Republican Party
of Minnesota v. White, 536 U.S. 765, 774-75 (2002), and thus are
likely to be found unconstitutional.
In Wisconsin the people elect judicial officers - from supreme court
justices to municipal court judges. Many of these judicial officers
first obtain their positions by appointment but eventually must run in
an election. I do not dispute that a code of judicial conduct may
address some issues that arise in a person's quest to become a judge as
well as a judge's effort to retain the judgeship. I also acknowledge
that a judicial code may regulate some political activity of a judge
that is unrelated to the judge's own election campaign. However, a
judicial code may not regulate the political activity of a person who is
not a judge unless that activity is directly related to the person's
judicial campaign. Regulation of a non-judge's political speech is a
restriction of the non-judge's constitutional rights of speech and
association. The proposition that the constitutional rights of
non-judges may be curtailed by a judicial rule is extraordinary, and any
such rule must be very narrowly drawn.
The former SCR 60.06 purportedly regulated "inappropriate political
activity" by judges and judicial candidates. However, the only
prohibition on a "candidate" for judicial office who was not already a
judge was a prohibition on personally soliciting or accepting
campaign contributions. SCR 60.06(4).1 In
truth, the former rule was silly if applied literally because it
prohibited a candidate from personally accepting a check from the
candidate's own spouse. It also prohibited a judge or other person from
personally accepting a contribution from a best friend or co-worker
whose contribution was spontaneous and completely altruistic. In
addition, the rule was inconsistent because it allowed judges and
candidates to establish fundraising committees but pretended that the
fundraisers thus recruited were not also being invited to give money.
Former SCR 60.06(4) was so unrealistic that inadvertent or unavoidable
violations were commonplace. SCR 60.06(4) has now been revised, but it
retains the same flaws as the former rule. The principal merit of the
rule in its various forms is that it is directly linked to an important
policy objective in judicial campaigns, that is, to limit any
candidate's direct involvement in campaign fundraising so as to avoid
compromises that might affect a judge or future judge's ability to be
impartial in future cases.
Former SCR 60.06(2) applied only to judges. It provided that a judge
"shall not be a member of any political party or participate in its
affairs, caucuses, promotions, platforms, endorsements, conventions or
activities." This stringent rule reinforced the principle that the
Wisconsin judiciary is nonpartisan and that partisan considerations
should not affect the determination of judicial decisions.2
The court now extends this rule to persons who have not yet become
judges . . . and may never become judges. SCR 60.06(2)(b). In short, it
applies to persons who are still private citizens. The new rule insists
that a person who merely seeks election or appointment to a judgeship
must surrender membership in a political party and give up any other
partisan activity, even though that partisan activity is unrelated to
the judgeship. In my view, this new rule is overbroad and an obvious
violation of the First Amendment freedoms of association and speech. It
cannot survive a strict scrutiny analysis to which it would be subjected
Moreover, the infringement in new SCR 60.06(2)(b) is unnecessary. SCR
60.06(2)(a) provides that a "candidate for judicial office shall not
appeal to partisanship." This new rule is designed to discourage
judicial candidates from making a narrow appeal to members of one
political party to gain an electoral advantage. I support this change,
even though it is a restriction on pure speech, because it underscores
the nonpartisan nature of our judiciary and tries to minimize the kind
of pre-election activity that might undermine public confidence or lead
to future recusals. Unlike SCR 60.06(2)(b), SCR 60.06(2)(a) is directly
linked to judicial campaigns.
Prohibiting political activity that is not intended to promote a
person's own election as a judge is going too far. Requiring a person
who is not a judge to give up the right to party membership, the right
to make partisan contributions, and the right to engage in political
activity unrelated to the person's own election is simply too sweeping
to pass constitutional muster.
The Commission on Judicial Elections and Ethics proposed a rule that
contained no exceptions to these "candidate" prohibitions, so
that they applied to partisan political officeholders such as state
legislators and elected district attorneys who might seek a judgeship.
As a practical matter, such a rule would have required these officials
to resign their positions before seeking a judicial office. The proposed
rule was so plainly unworkable that this court was forced to craft SCR
60.06(2)(c), excepting such officeholders. In excepting these
officeholders, however, the court permits some judicial candidates who
are not judges to engage in partisan political activity while
determining that other non-judge candidates may not. It is very hard to
defend this disparate treatment. If the new rule actually serves "a
compelling state interest," it is unfathomable why only some non-judge
judicial candidates are required to follow it.
There are members of this court who believe that it is unfair to give
non-judge candidates freedom to engage in some partisan political
activity while prohibiting sitting judges from doing so. This concern
smacks of incumbency protection. Judges should not be able to invoke all
the trappings of their incumbency - e.g., campaign photographs from the
bench - while depriving opponents of their constitutional right to
political association. The constitutional right to freedom of
association should not be so easily dismissed.
There is no pattern of incumbent judges falling to challengers on
account of the challengers' partisan political credentials. On the
contrary, the public tends to re-elect judges who wage nonpartisan or
bipartisan campaigns and who conduct themselves without partisanship in
office. In any event, under SCR 60.06(2)(a), candidates for judicial
office are not permitted to appeal to partisanship, even if they were to
retain their right to political association before they become
Finally, I am concerned about the apparent bias in the new rules. The
new rules prohibit a candidate who is not a judge from membership in a
political party, but they do not prohibit a candidate who is not a judge
from membership in other organizations that advocate policy changes,
have large memberships, and have substantial electoral influence. This
disturbing inconsistency suggests disapproval of political parties and
people who have been active in partisan politics. It is difficult to
understand why a candidate's mere membership in a political party is an
evil susceptible to prohibition, but membership in a powerful lobbying
organization is not.
1(4) Solicitation or acceptance of
campaign contributions. A judge or candidate for judicial office shall
not personally solicit or accept campaign contributions.
2See also current SCR
60.03(2) and SCR 60.04(1)(b):
"60.03(2) A judge may not allow family, social, political or
other relationships to influence the judge's judicial conduct
"60.04(1)(b) A judge shall be faithful to the law and maintain
professional competence in it. A judge may not be swayed by partisan
interests, public clamor or fear of criticism."
PATIENCE D. ROGGENSACK, J. (dissenting to revisions in SCR
60.06(2)). I write in dissent because I conclude that SCR 60.06(2)
of the Code of Judicial Ethics, which prohibits some candidates for
judicial office from associational activities related to political
parties, does not pass muster under the First and Fourteenth
Amendments3 of the United States
The Code of Judicial Ethics defines a candidate for judicial office
"a person seeking selection for or retention of a judicial office by
means of election or appointment who makes a public announcement of
candidacy, declares or files as a candidate with the election or
appointment authority, or authorizes solicitation or acceptance of
contributions or support." SCR 60.01(2).
SCR 60.06(2) prohibits candidates from engaging in associational
activities with political parties, if the candidate is not a partisan
elected official. Accordingly, candidates who hold certain offices are
not subject to the prohibition. SCR 60.06(2)(c). The Code of Judicial
Ethics does not regulate other associational activities by candidates,
so that candidates who participate in other politically active
organizations may continue to do so.
The First Amendment guarantees political association, as well as
political expression. Buckley v. Valeo, 424 U.S. 1, 15 (1976).
As the United States Supreme Court has explained,
"[T]he First and Fourteenth Amendments guarantee freedom to associate
with others for the common advancement of political beliefs and ideas, a
freedom that encompasses (t)he right to associate with the political
party of one's choice." Id. (quoted citations omitted).
The right of association is a fundamental right; therefore it cannot
be restricted unless the regulation passes strict scrutiny.
Republican Party of Minnesota v. White, 536 U.S. 765, 774-75
(2002). Strict scrutiny requires that the regulation be narrowly
tailored to serve a compelling state interest. See Monroe County
Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶ 26, 271 Wis.
2d 51, 678 N.W.2d 831. The interest of maintaining a nonpartisan
judiciary is asserted as the compelling state interest that requires
In my view, SCR 60.06(2) does not pass strict scrutiny. First, I am
not persuaded that the stated interest is a "compelling" interest. Other
states have judiciaries that actually seek office on party tickets,
e.g., Ohio and Texas. While I personally believe that a
nonpartisan judiciary is the better choice, I am not convinced that a
"better choice" is sufficient reason to support a compelling state
interest. In addition, I can see nothing unique to membership in a
political party that would not be present in the myriad of other
organizations that are overtly partisan in nature, e.g., People
For the American Way, Judicial Watch, the Sierra Club or Democracy
Furthermore, the regulation is under-inclusive because it excepts all
who seek judicial office while they hold a partisan elected position.
SCR 60.06(2)(c). It has been held that under-inclusiveness reduces the
credibility of the purpose that the rule is asserted to promote.
White, 536 U.S. at 780. In my view, it does so here.
Finally, the regulation does not withstand strict scrutiny because it
is over- inclusive. That is, it is not narrowly tailored to meet the
rule's stated purpose. It is over-inclusive, unnecessarily
circumscribing protected associations, because few who apply for
judicial appointment or run for judicial office are chosen to become
judges. Therefore, forcing them to withdraw from all political activity
is not necessary to promoting the stated purpose of the rule,
maintaining a nonpartisan judiciary. Because I conclude that SCR
60.06(2) does not withstand strict scrutiny and violates the First
Amendment's right to freely associate, I dissent from the court's
decision to make it a part of the Wisconsin Code of Judicial Ethics.
For the foregoing reasons, I dissent.
I am authorized to state that Justices David T. Prosser and Louis B.
Butler Jr. join this dissent.
3The First Amendment of the United
States Constitution provides: "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a
redress of grievances." The First Amendment is made applicable to state
action by the Fourteenth Amendment. Sauk County v. Gumz, 2003
WI App 165, ¶ 8, 266 Wis. 2d 758, 669 N.W.2d 509.
LOUIS B. BUTLER JR., J. (concurring in part, dissenting in
part). I agree with most of the proposed rule changes to SCR
Chapter 60, Code of Judicial Conduct - Campaigns, Elections, Political
Activity. I join Justice Roggensack's dissent regarding the revisions in
SCR 60.06(2). I write separately because of my concerns about the
revisions to SCR 60.06(4), and how that section might be applied to
The revision to 60.06(4) would not allow a judge, judge-elect or
judicial candidate to personally solicit or accept campaign
contributions. Instead, a candidate could establish a committee to
solicit and accept lawful contributions. While a judge or candidate
could serve on the committee and appear at his or her own campaign
events, that judge or candidate should avoid direct involvement with the
committee's fundraising efforts. Just what does that mean? Should the
judge or candidate avoid selecting a location for a "reception" to be
held where donations would be accepted? Should he or she be involved in
deciding who would be invited to a reception? Should the candidate
refrain from identifying friends to the committee that the committee
might want to contact to solicit? Should the candidate be able to
approve or veto fundraising efforts proposed by the committee? The
revision to the rule raises questions about a judicial candidate's level
of participation that are not raised by the current rule.
Of more concern is the Comment to the revised rule, which states that
a judge should avoid having his or her name listed on another's
fundraising solicitation even when the listing is accompanied with a
disclaimer that the name is not listed for fundraising purposes. In
light of the proposed revision to SCR 60.06(5), which would not prohibit
a judge from endorsing another judicial candidate, who would be in
violation if a judge's name was listed on an invitation to a reception
that included a disclaimer, the candidate or the judge endorsing the
candidate? Indeed, is there a violation at all, as the Comment
As Justice Roggensack points out in her dissent, the First Amendment
guarantees political association as well as political expression.
Buckley v. Valeo, 424 U.S. 1, 15 (1976). Supreme Court Rule
60.06(5) does not preclude judicial endorsements, nor should it. If the
Comment correctly interprets 60.06(4), however, then judicial candidates
would be faced with the dilemma of either not using judicial
endorsements at all (a rule that some might prefer), or with effectively
doubling the cost of any campaign budget for mailings, as one would no
longer be able to include two separate documents in one envelope (one
that included a list of supporters on an invitation to a "reception,"
and the other that included a return envelope that would allow an
individual to support the candidate in a number of ways, including a
donation to the campaign). Such an interpretation unnecessarily limits
the political expression of the candidate seeking to show a strong level
of support for his or her candidacy. It also chills, unnecessarily, the
political expression of the judge or judicial candidate seeking to
support another judicial candidate. Why would a judge want to run the
risk that someone else's campaign committee might inadvertently get that
judge in trouble by using his or her name in an inappropriate manner?
Taking for granted that there is a compelling state interest in
prohibiting a judge or a judicial candidate from personally soliciting
or accepting campaign contributions, I am not convinced that the
revision to SCR 60.06(4), as interpreted by the Comment to the rule, is
narrowly tailored to serve that interest.
Our state has not yet passed campaign finance reform laws. Judges and
judicial candidates are precluded from making or permitting others to
make, with respect to cases, controversies, or issues that are likely to
come to the court, pledges, promises, or commitments that are
inconsistent with the impartial performance of the adjudicative duties
of the office. New SCR 60.06(3). Judges and judicial candidates are not
only precluded from appealing to partisanship in order to get elected, a
rule that I agree is narrowly tailored to meet a compelling state
interest (New 60.06(2)(a)), they are also precluded from even becoming
members of a political party or actively engaging in any partisan
activities.4 Most judicial campaigns
currently consist of getting out strong lists of supporters in order to
scare off competition and in order to show how strong a candidate may
be. If the revised code limits or eliminates a candidate's ability to
get his or her message out and show the level of support that exists,
then I fear that judicial elections will degenerate to the types of
personal attacks that have increased in recent years. Such attacks
necessarily undermine the integrity of the judiciary. As long as we
choose to elect judges in this state, and until some measure of campaign
finance reform is passed by the legislature, candidates have to be able
to effectively campaign. The old Rule effectively allowed judicial
candidates to campaign. I fear that the new rule, as interpreted by the
Comment to SCR 60.06(4), does not.
There is an old adage that aptly applies here: "If it ain't broke,
don't fix it." Because SCR 60.06(2)(b) and 60.06(4) are not narrowly
tailored to meet a compelling state interest, and because these rules
interfere with and chill a judicial candidate's freedoms of expression
and association, I respectfully dissent from the adoption of these
provisions. I join with the majority in the adoption of the remainder of
the revisions to SCR Chapter 60.
I am authorized to state that Justice David T. Prosser joins this
dissenting in part, concurring in part opinion.
4I am reminded of the 1984
presidential campaign, which included closed political primaries. If
Wisconsin decided to go back to the closed primary system, would judges
and judicial candidates be deprived of the right to vote in the primary
because of SCR 60.06(2)(b), since one would have to declare political
party membership in order to vote at all in the primary?
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Wisconsin Ethics 2000
In the Matter of the Amendment of Supreme Court Rules,
Chapter 20, Rules of Professional Conduct for Attorneys
On July 29, 2004, the Wisconsin Ethics 2000 Committee filed a
petition proposing amendments to Supreme Court Rules Chapter 20
concerning the professional conduct of attorneys.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Feb. 17,
2005, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
Dated at Madison, Wis., this 12th day of October, 2004.
By the court:
Cornelia G. Clark
Clerk of Supreme Court
Wisconsin Ethics 2000 Committee respectfully petitions the Wisconsin
Supreme Court to revise the Rules of Professional Conduct for Attorneys
(Chapter 20, Supreme Court Rules) as recommended in the committee's
Proposed Amendments to Supreme Court Rules Chapter 20 attached to this
Mission. The Wisconsin Supreme Court created the Wisconsin
Ethics 2000 Committee in February 2003 and issued the following Mission
"The Commission on the Evaluation of the Rules of Professional
Conduct, commonly known as Ethics 2000, was a commission appointed by
the American Bar Association to review the ABA Model Rules of
Professional Conduct and propose changes or revisions to update the
rules for today's legal practice. The commission was charged to conduct
a comprehensive study and evaluation of the ethical and professionalism
precepts of the legal profession; examine and evaluate the Model Rules
and the rules governing professional conduct in the state and federal
jurisdictions; conduct original research, surveys, and hearings; and
formulate recommendations for action. The commission completed its work
in 2001 and proposed changes to the Model Rules which the ABA House of
Delegates considered and adopted in part in 2002."
In response, the Supreme Court of Wisconsin has created the Wisconsin
Ethics 2000 Committee. Its mission is as follows:
1. The committee shall conduct a comprehensive review of the
Wisconsin Rules of Professional Conduct for Attorneys in light of the
changes, both proposed and adopted, to the Model Rules by the
commission, and any other changes the committee deems appropriate. This
shall include consideration of the rules petition to be submitted to the
court from the Fee Arbitration Study Committee; the committee shall
respond to that petition at the court's public hearing on the matter in
the fall, 2003. The committee shall not consider matters relating to
multi-jurisdictional or multi-disciplinary practice.
2. The committee shall recommend changes, if any, to the existing
Wisconsin Rules via a petition to this court for a rules change. The
petition, with detailed comments, shall be filed by October, 2004. The
court anticipates scheduling the matter for a public hearing in winter,
3. In the interest of providing full and fair consideration of these
important public policy issues, the committee shall solicit comments
from the bench, bar, and public. In planning its meeting, the committee
shall consider the state's fiscal condition and keep expenditures at a
minimum, so far as consistent with conducting a comprehensive review.
Accordingly, the committee is urged to seek written submissions and
utilize teleconferencing and subcommittees as appropriate.
This Petition is filed by the committee pursuant to the court's
direction in the Mission Statement.
Meetings. The full committee had 10 day-long meetings, which
were held on April 21, June 24, Sept. 23, and Nov. 18, 2003, and on Jan.
27, March 1, March 23, April 27, May 17, and June 24, 2004. Five
subcommittees held many additional meetings in person and by
teleconference. Considerable work was also performed by email, which was
facilitated by a listserve hosted by the State Bar of Wisconsin.
Outreach. Tentative drafts of the committee's proposals have
been posted on the State Bar Web site since late April 2004.
Members of the committee met with approximately 200 State Bar members
in a three-hour session at the annual meeting of the State Bar in
Madison on May 7, 2004. In addition, committee members met with many
other groups of lawyers and laypersons, including at meetings sponsored
by Milwaukee Bar Association, Waukesha County Bar Association, Barron
County Bar Association, Inns of Court in Brown County and Milwaukee
County, Eau Claire County Bar Association, Wausau Early Bird Rotary
Club, Dane County Bar Association, Wisconsin chapter of the American
Corporate Counsel Association, Legal Aid Society of Milwaukee, Wisconsin
Legislative Institute, Wisconsin Prosecutors Seminar, Wisconsin Bar
non-resident members in Chicago and Minnesota, Wisconsin Department of
Justice, Civil Trial Counsel of Wisconsin, Marquette University Law
School, and University of Wisconsin Law School Resource Center on
Impaired Driving. The committee also consulted in person and in writing
with the Wisconsin Supreme Court Fee Arbitration Study Committee,
particularly with respect to issues concerning fees.
In addition to the extensive comments received in these various
meetings, the committee received written submissions from a number of
individuals and groups. Among the groups submitting written comments
were the Government Lawyers Division of the State Bar, the State Public
Defender's Office, and the Lawyer Dispute Resolution Committee.
Format. The attached proposal concerning Supreme Court Rules
Chapter 20 contains the following components:
- The current rules are presented in a red-line format that
highlights all proposed changes (i.e. amendments to current rules,
proposed new rules, proposed deletions of current rules).
- With respect to proposed rules that differ from their counterpart
provisions in the American Bar Association Model Rules of Professional
Conduct (August 2003), a Wisconsin Committee Comment is included
that identifies the difference between the proposed rule and the model
- The Preamble and Scope sections of the Model Rules and ABA
comments to each model rule are included, without noting changes
from prior versions.
The committee recommends that the court retain the current format of
chapter 20. Currently, only the "black letter" provision of each rule is
promulgated by the court, but the Preamble and Scope sections of the
Model Rules and ABA comments to each model rule are included in chapter
20 for information purposes. This approach provides helpful guidance to
the meaning of the rules and is consistent with the design of the Model
Rules. See Model Rules Scope ¶ 21.
The committee recommends including in chapter 20, for information
purposes, Wisconsin Committee Comments for rules that differ from their
model rule counterparts. These comments identify differences from the
model rules; for the most part, they do not explain or justify those
differences. Under this approach, the rule language speaks for itself,
and additional interpretive problems are not introduced in the Wisconsin
Working assumptions. The ABA Ethics 2000 Commission
proposed, and the American Bar Association adopted, very extensive
changes to the model rules. The great majority of these changes,
however, are intended to clarify rather than change existing duties. For
this reason, a cursory review of the committee's proposals may be
misleading. While the committee, following the lead of the ABA, proposes
amendments to over half of the rules, the vast majority of these
proposed amendments clarify rather than alter existing policy. After
approximately twenty years of experience under the model rules as
adopted in most jurisdictions, certain gaps and ambiguities have
surfaced. Much of this revision resolves those problems without
significantly changing underlying policy.
In undertaking its analysis and formulating its proposals, the
committee generally deferred to the model rule formulations of duty,
unless an important policy concern dictated otherwise. This policy
preference in favor of the model rules is appropriate, in the
committee's view, for a number of reasons. First, the ABA Ethics 2000
Commission performed careful and high-quality work in developing its
proposals, with extensive involvement by a wide array of experts both
within and outside the legal community. Second, the model rule
formulation is enriched by interpretive guidance provided by courts and
commentators; this benefit is reduced when minor changes in language are
incorporated into the Wisconsin rule. Third, many legal matters have
multi-state dimensions so that consistency among the states is
desirable, at least when important policy concerns are not involved.
This mild deference to model rule language means that the committee
generally did not "tweak" the wording of proposed rules for stylistic
reasons. Absent a meaningful policy concern, the committee generally
recommends adoption of the model rule as it is written.
The committee recognizes that certain of its proposals involve
significant changes that should be specially brought to the court's
attention. The following proposals fall in that category.
Rule 1.0 Terminology. This new rule defines certain terms
used throughout the rules. Among its most significant provisions is the
standard of "informed consent" which is applied in the proposed rules to
many decisions that clients are responsible for making. The rules do not
currently include "informed consent" as the standard. In addition, the
committee proposes definitions for "misrepresentation" (to include only
intentional misrepresentation) and "prosecutor" (to include municipal
prosecutors and prosecutors in juvenile court) that are not contained in
the model rule.
Rule 1.5 Fees. Amendments to this rule are pending before
the court by virtue of a petition filed by the court's Fee Arbitration
Study Committee. The present proposal, which differs in a couple of
respects from the committee's response to the Fee Arbitration Study
Committee petition, was developed after consultation with the Fee
Arbitration Study Committee and based on comments by lawyers and
Rule 1.6 Confidentiality. The proposal contains the
distinctive exception to the duty of confidentiality that is in the
current rule, arising in certain cases involving client crimes and
frauds. The proposal adopts the model rule exceptions for compliance
with a court order to testify and also for disclosures that "comply with
other law." Because of the latter exception, the committee proposes
deletion of the current reference to §§ 19.43 and 19.44,
Rule 1.8 Conflicts of interest: prohibited transactions.
Among other proposed changes, the committee recommends deletion of the
insurance defense exception to the requirement that a client consent to
the lawyer's fee being paid by a third party. One of the recurring
themes in the proposed rules is that lawyers clarify their
relationships, and the committee views this as equally important in the
insurance defense setting. See Marten Transport Ltd. v. Hartford
Specialty Co., 194 Wis. 2d 1, 533 N.W.2d 452 (1995).
Rule 1.10 Imputed disqualification: general rule. The
committee proposes that, when a lawyer changes firms, the lawyer's
conflict of interest in a matter will not be imputed to lawyers at the
new firm if (1) the conflict arises from legal services that were only
minor and isolated and (2) the personally disqualified lawyer is timely
screened from participation. The committee believes that this limited
screening rule protects important client interests, while responding in
a fair and practical way to the abuse of disqualification motions as a
litigation strategy. See generally Nelson v. Green Builders
Inc., 823 F. Supp. 1439 (E.D. Wis. 1993).
Rule 1.18 Duties to prospective clients. The committee
recommends that the court adopt this new rule which currently has no
counterpart in chapter 20.
Rule 2.2 Intermediary and Rule 2.4 Lawyer serving as
third-party neutral. The committee recommends that Rule 2.2 be
deleted in its entirety, as it is in the revised model rules, because
the issues addressed by this rule are better dealt with in other rules,
including conflicts of interest rules and new Rule 2.4. New Rule 2.4
defines the role and obligations of service as a third-party
Rule 3.8 Special responsibilities of a prosecutor. The
committee proposes new provisions, not contained in the model rule, to
clarify what communications are permissible between a prosecutor and an
unrepresented defendant. The committee believes that a prosecutor should
be able to negotiate a plea with an unrepresented defendant, but the
prosecutor should not provide other legal advice or assistance to the
defendant in the process.
Rule 3.10 Threatening criminal prosecution. The committee
recommends that this provision, which has no counterpart in the model
rules, be deleted. The standards for establishing a violation of the
rule are high, and the facts of individual cases will often contain
sufficient ambiguity to make the rule inapplicable. See generally In
re Disciplinary Proceedings Against Coe, 2003 WI 117, 665 N.W.2d
849, 265 Wis. 2d 27 (2003). To the extent that threats to present
criminal charges amount to extortion, the conduct can be prosecuted
under appropriate provisions in Rule 8.4.
Rule 4.1 Truthfulness in statements to others. The committee
proposes a new paragraph, not found in the model rule, that recognizes
that prosecutors may advise and supervise others with respect to lawful
undercover investigations that involve deception. The failure of the
rules to address this issue leaves such conduct largely unregulated
because the parameters of ethical conduct are unstated. Moreover, the
committee believes that it is wise to encourage the supervision by
prosecutors of investigations so that the rights of suspects will be
Rule 4.5 Guardians ad litem. The committee proposes this new
rule, which has no counterpart in the model rules, in order that
guardians ad litem understand that their conduct is governed by the
rules, even though their responsibilities may differ, in some respects,
from those in the usual representation.
Rule 6.1 Pro bono publico service. The committee proposes
that lawyers be required to file a report annually concerning their pro
bono activities. This requirement is recommended as a way to emphasize
the pro bono responsibilities of lawyers and to collect information
about pro bono services and needs. The model rule does not contain a
Rule 6.5 Nonprofit and court-annexed limited legal services
programs. This new rule, which is part of the model rules, provides
limited protection against disqualifying conflicts of interest for
certain legal advice hotlines and advice-only clinics that qualify.
Rule 7.6 Political contributions to obtain government legal
engagements or appointments by judges. This is a new model rule,
designed to prohibit "pay-to-play" practices. The committee did not see
this as a problem in Wisconsin, but believes that the express
prohibition of such practices is sound policy.
Rule 8.4 Misconduct. The committee has proposed two new
paragraphs that are not included in the model rule. Paragraph (h)
restates the lawyer's duty to cooperate in the investigation of a
grievance, in the belief that placement of the duty in chapter 20 will
provide better notice to lawyers. Paragraph (i) makes it misconduct to
harass a person on the basis of sex, race, age, creed, religion, color,
national origin, disability, sexual preference or marital status in
connection with the lawyer's professional activities. This provision is
intended to reinforce the strong commitment to equal justice under
This petition and the attached proposal will be posted on the State
Bar Web site. The committee may meet again if comments from others are
such that a meeting would be appropriate to consider additional
revisions. The committee expresses its gratitude to the court for this
opportunity to be of service.
Wisconsin Ethics 2000 Committee
By: Daniel W. Hildebrand, Chair
DeWitt, Ross & Stevens, Madison
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