Does a lawyer violate the ethics rules by striking jurors based on race or another protected trait during jury selection?

Plain-English summary

The opinion addresses how Rule 8.4(g), which makes it professional misconduct to engage in discrimination the lawyer "knows or reasonably should know" is based on protected traits in conduct related to the practice of law, applies to peremptory challenges during jury selection. It works from the Batson v. Kentucky line of cases, under which striking prospective jurors based on traits such as race or gender violates the jurors' equal protection rights, while other grounds (the opinion gives age, marital status, and socioeconomic status as examples that courts have permitted) are not forbidden.

The opinion answers two questions. First, an unlawful discriminatory strike is not "legitimate advocacy." As the opinion puts it, "conduct that has been declared illegal by the courts or a legislature cannot constitute legitimate advocacy," so a lawyer who commits a Batson violation has engaged in unlawful discrimination that violates Rule 8.4(g). The opinion reads Comment [5], which says a trial judge's finding of a discriminatory strike "does not alone establish a violation," as a point about the evidentiary burden in a later disciplinary case (which may apply a higher standard of proof and a fuller record), not as an exemption from the rule.

Second, the rule applies only where the lawyer "knew or reasonably should have known" the challenge was unlawful. The opinion works through three scenarios where the lawyer is not the originator of the discriminatory reason: a client's directive, a jury consultant's recommendation, and an AI-assisted juror-ranking tool. It states that "a lawyer acts at a client's direction does not make otherwise unlawful conduct legitimate," and that where a strike is facially or likely discriminatory but a nondiscriminatory reason is offered, the "reasonably should know" standard "imposes a duty of inquiry." For AI tools, the opinion holds that lawyers "should conduct sufficient due diligence to acquire a general understanding of the methodology" of the program, citing Formal Opinion 512 on generative AI.

Finally, the opinion holds that Rule 8.4(g) does not reach discriminatory strikes that substantive law permits. Although the rule's notion of discrimination is broader than what is unlawful, applying it to lawful strikes "would create a vague and unworkable standard" and risk deterring legitimate advocacy, and the opinion finds nothing in the rule's text or history showing it was meant to add restrictions beyond the law of peremptory challenges.

In practice

Under this opinion, a trial lawyer who exercises a peremptory challenge that the lawyer knows or reasonably should know is unlawfully discriminatory under Batson and applicable law violates Rule 8.4(g), and the lawyer cannot defend the strike as legitimate advocacy or as merely following the client's instructions. When a client or jury consultant supplies the reason for a strike, the opinion holds that the lawyer must inquire where the strike appears discriminatory: if the stated reasons are sincere and lawful the lawyer may proceed, but if a reasonably competent lawyer would recognize them as pretextual, the lawyer must refrain. Decisions about which jurors to strike are the lawyer's "means" decisions under Rule 1.2(a), so the lawyer has no obligation to follow a client's unlawful directive and must instead consult with the client about the legal limits under Rule 1.4(a)(5).

Where a lawyer uses an AI-assisted jury-selection tool, the opinion holds that the lawyer should do enough due diligence to understand the tool's methodology, so the lawyer can tell whether its rankings would drive unlawful strikes. The opinion is also explicit about the boundary of the rule: a strike based on a ground that the law of peremptory challenges permits, such as age or marital status, does not violate Rule 8.4(g).

Common questions

Q: Is a Batson violation automatically an ethics violation?

A: Per the opinion, an unlawful discriminatory strike violates Rule 8.4(g), but a trial judge's finding of a Batson violation is not, by itself, enough to prove the disciplinary charge. The opinion treats Comment [5] as addressing the burden of proof, noting a disciplinary case may apply a higher standard and develop a fuller record.

Q: If my client tells me to strike jurors of a certain race, must I do it?

A: No. The opinion concludes that a client's direction does not make unlawful conduct legitimate, that striking jurors is a "means" decision for the lawyer under Rule 1.2(a), and that the lawyer must instead consult with the client about the legal limits under Rule 1.4(a)(5).

Q: A jury consultant recommends strikes that look race-based but gives neutral reasons. What do I do?

A: The opinion holds the "reasonably should know" standard imposes a duty of inquiry. If after inquiry the reasons are sincere and lawful, the lawyer may exercise the strikes; if a reasonably competent lawyer would recognize the reasons as pretextual and the strikes as unlawful, the lawyer must refrain.

Q: I use AI software to rank jurors. Am I responsible if it discriminates?

A: Per the opinion, a lawyer should conduct enough due diligence to understand the tool's methodology. Whether the lawyer "reasonably should know" the strikes are discriminatory depends on the circumstances, and the opinion applies the generative-AI competence guidance of Formal Opinion 512.

Q: Can I ever strike a juror based on a characteristic without violating Rule 8.4(g)?

A: Yes. The opinion concludes that a discriminatory strike that substantive law permits, for example one based on age or marital status, is lawful advocacy and does not violate Rule 8.4(g).

Background and rules framework

The opinion interprets Model Rule 8.4(g) (professional misconduct through harassment or discrimination related to the practice of law), including its "legitimate advice or advocacy" exception and Comment [5], against the constitutional law of jury selection in Batson v. Kentucky and its progeny. It applies the Model Rules' definitions of "knows" (Rule 1.0(f)) and "reasonably should know" (Rule 1.0(j)), and frames jury-strike decisions as "means" of the representation under Rule 1.2(a), with the consultation duty of Rule 1.4(a)(5). It builds on Formal Opinion 493 (purpose and scope of Rule 8.4(g)), Formal Opinion 513 (duty of inquiry), and Formal Opinion 512 (competence with generative AI tools).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.4(g) (harassment and discrimination), Comment [5]
• ABA Model Rule 1.2(a) (allocation of authority, "means" decisions), 1.4(a)(5) (consulting on limits)
• ABA Model Rule 1.0(f) ("knows") and 1.0(j) ("reasonably should know")

Cases:

• Batson v. Kentucky, 476 U.S. 79 (1986), bar on race-based peremptory challenges
• J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), extending Batson to gender
• Flowers v. Mississippi, 588 U.S. 284 (2019), pretext analysis in Batson claims
• Hernandez v. New York, 500 U.S. 352 (1991), facially neutral explanations for strikes

Other opinions cited:

• ABA Formal Op. 493 (2020): purpose, scope, and application of Model Rule 8.4(g)
• ABA Formal Op. 512 (2024): competence and due diligence with generative AI tools
• ABA Formal Op. 513 (2024): the lawyer's duty of inquiry under Rule 1.16(a)

See also

• ABA Formal Op. 493: Model Rule 8.4(g) Harassment and Discrimination
• ABA Formal Op. 512: Generative AI Tools
• ABA Formal Op. 513: Duty to Inquire Into Each Representation

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-517.pdf