It has been a bruising election season, fam, and it’ll still be going when you read this, and then going again soon after that. This is Wisconsin, after all.

For those who have won your elections (or soon will) — congratulations and/or condolences. Somewhere between your victory party and your swearing-in, you will come to the realization that you now have two jobs, public official and lawyer, and about 400 extra emails a day.

Those two roles (and maybe those 400 emails) usually coexist reasonably well. Lawyers can bring useful skills to the office, including the ability to read statutes, recognize procedural problems, and deal with … difficult personalities. But your responsibilities under the Supreme Court Rules will affect how you serve the people who elected you, not just the people who seek your advice. The lawyer-legislator (or the lawyer-county executive or lawyer-sanitary district commissioner) combination creates ethical traps that are easy to miss.

One important note: Attorney discipline in Wisconsin is complaint-based. The Office of Lawyer Regulation (OLR) can initiate complaints on its own (for example, when it receives notice of an overdraft in an attorney’s IOLTA account), but most of its investigations come from clients, opposing counsel and parties, judges, and others — including members of the public.

Public officials, by definition, get a lot of public attention. And sometimes, when a lawyer does something controversial that ends up on the news or goes viral, people with no knowledge of what happened file grievances with the OLR — regardless of whether the lawyer was acting as a lawyer or in some other professional or personal capacity, and regardless of whether that “controversial” thing was illegal, unwise, or just something that some people watching didn’t like. So elected officials may find themselves on the receiving end of grievances they might not otherwise have gotten, by virtue of their public life.

Can Lawyers Even Get in Trouble for Things They Do as Candidates and as Elected Officials?

Short answer: yes. Of course, district attorneys and some city attorneys are lawyers who practice law as elected officials, and they are not immune from discipline.^[1] But lawyers who campaign for and serve in other elected positions are also subject to the attorney regulatory system, even for things they do in their campaign or elected capacity that have nothing to do with practicing law.

Wisconsinites of a certain age will remember the “caucus scandal,” in which members of the Wisconsin Legislature from both parties were investigated and later convicted of misconduct in office and other charges for illegally using state-paid legislative staff and public resources to run partisan campaigns.^[2] Two of the legislators implicated were lawyers. Even though neither was convicted of a crime directly involving the practice of law, both were disciplined for violating SCR 20:8.4(b) (committing a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer).^[3]

Oops, I Might Have Made a Campaign Promise I Can’t Keep

So you’ve won! Depending on the office, or whether you’ve won a special election to finish out the last months of someone else’s term, you might need to start campaigning for reelection right away. And on top of that, you still have your day job.

Like SCR 20:8.4 (b) (the criminal-conduct rule discussed above), SCR 20:8.4(c) (which prohibits lawyers from engaging in dishonest or fraudulent conduct) is a 24/7 rule that applies whether a lawyer is practicing law, working with a client, or not. That does not mean that every lawyer-politician who promises they’ll do something while campaigning and then cannot deliver once elected has violated the Supreme Court Rules. I’m sure the OLR has better things to do than investigate whether constituents received the two cars in their garage and a chicken in every pot that were promised.^[4] There does not appear to be a publicly available case in which a lawyer was disciplined for campaign puffery.

One interesting set of cases stemmed from campaign activities involving a husband and wife, both of whom were lawyers.^[5] The wife was running for a judicial position, and the husband was serving in the state legislature. Both were charged with violations related to the husband’s solicitation of an anonymous complaint to the Wisconsin Judicial Commission against the wife’s opponent, an incumbent judge, so that the wife could gain an advantage in the election. Both cases were dismissed.

Those Pesky “Material Limitation” Conflicts

Okay, your city and your constituents aren’t your clients, but direct conflicts of interest between clients aren’t the only conflicts you need to worry about. SCR 20:1.7(a)(2) requires lawyers to avoid conflicts of interest that materially limit the representation of a client, even when the competing obligation is service in public office. A lawyer’s responsibilities to “a third person” or the lawyer’s own interests can create a concurrent conflict requiring informed consent — or make the representation impossible altogether.

Maybe you’ve represented a developer for years, and now you’ve been elected to the city council considering that developer’s new project. Or maybe you represent an environmental group opposed to the project. Do you need to recuse yourself from the vote, withdraw from the representation, or maybe both?

The answer is a rather unsatisfying “it depends.” It depends on the specific facts, but pretending there is no conflict is rarely among the available options. SCR 20:1.7(b) may allow you to continue the representation with signed informed consent if you reasonably believe you can provide competent and diligent representation to all affected clients, and — and this is important — the representation is not prohibited by law. State or local ethics codes may have something to say about whether you can play any of your roles.^[6]

Before answering a legal question, remind yourself: you are a lawyer, but you’re not their lawyer.

“If I Could Speak as a Councilwoman for a Minute”

Lawyers love disclaimers like “this is not legal advice.” In a government setting, perhaps this comes across as, “I’m not speaking as county corporation counsel; I’m only speaking as a board supervisor here.” But your fellow board members and your constituents often see your JD and your law license whether you intended that or not — and let’s face it, most of us cannot shut off our lawyer brains or our lawyer mouths for very long.

Lawyers are problem-solvers by nature. Elected officials are expected to solve problems. Sometimes that expectation leads lawyers to give legal advice when they are not actually serving as anyone’s attorney. Constituents ask legal questions. Fellow board or council members ask whether something is “legal.” Staff members seek guidance because “you’re the lawyer.”

Sometimes, these requests aren’t really for legal advice — they’re seeking wisdom, or perhaps they’re expecting the lawyer in the house to be the buzzkill and are looking for a way to say “no.” Before answering a legal question, remind yourself: you are a lawyer, but you’re not their lawyer. Your casual hallway advice can create confusion about who, if anyone, you represent and whether an attorney-client relationship exists and might create some heartburn for your malpractice carrier. When in doubt, the governmental body you serve on likely already has legal counsel, and legal questions should be directed to them. Constituents should be directed to their own lawyers or a referral service.

It’s Still Worth It

None of the above should discourage lawyers from seeking elected office. Lawyers bring valuable skills to public service: careful analysis, respect for process, appreciation for constitutional limits, and (one hopes) the ability to read and understand a proposal before spouting off about it on social media.

The ethical rules are not obstacles to public service. They’re guardrails. Stay inside them, and you can hold down both of your jobs without ever hearing from the OLR.

Endnotes

[1] See, e.g., In re Disciplinary Procs. Against Kratz, 2014 WI 31, 353 Wis. 2d 696, 851 N.W.2d 219 (district attorney suspended for sending sexually harassing text messages to a domestic abuse victim in a case he was prosecuting); In re Disciplinary Procs. Against King, 2023 WI 77, 409 Wis. 2d 518, 998 N.W.2d 483 (district attorney suspended for appearing in court while intoxicated and for sexual harassment of women in his office). Judges are also elected officials, but judicial discipline is governed by SCR chapter 60 and is outside of the scope of this article. ^

[2] Dee J. Hall, State Employees Secretly Campaign, Wis. State J. (May 20, 2001), https://madison.com/article_db4a5d97-43bb-5df5-bedb-24675f6fbc45.html (behind paywall for some readers). ^

[3] In re Disciplinary Procs. Against Burke, 2007 WI 46, 300 Wis. 2d 198, 730 N.W.2d 651. Attorney Burke was also disciplined under SCR 20:8.4(b) for illegally withholding a document that had been subpoenaed. In re Disciplinary Procs. Against Chvala, 2007 WI 47, 300 Wis. 2d 206, 730 N.W.2d 648. Attorney Chvala was also disciplined under SCR 20:8.4(b) for a criminal violation of campaign finance law. ^

[4] This promise has been misattributed to Herbert Hoover, who, in any case, was not a lawyer and died decades before the Office of Lawyer Regulation was formed. ^

[5] In re Disciplinary Procs. Against Kessler, 2010 WI 120, 329 Wis. 2d 559, 789 N.W.2d 744 (Frederick Kessler); In re Disciplinary Procs. Against Kessler, 2010 WI 121, 329 Wis. 2d 539, 789 N.W.2d 734 (Joan Kessler). ^

[6] Wis. Stat. sections 19.41-.59, as well as county and municipal codes, contain ethical rules for government officials. ^