The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion: ABA Formal Ethics Opinion 517 - Discrimination in the Jury Selection Process. The abstract reads:
If you recall, paragraph [5] of the comment to Rule 8.4 states that "[a] trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g)." For this reason, the opinion attempts to address the following questions:
Rule 8.4(g) presents two principal questions regarding discriminatory challenges. First, in light of Comment [5], when does a lawyer’s unlawful exercise of peremptory challenges on a discriminatory basis violate Rule 8.4(g)? Second, given the statement that lawyers may engage in legitimate advocacy consistent with the Model Rules, does a lawyer violate Rule 8.4(g) by exercising peremptory challenges on discriminatory bases where not forbidden by other law?
The opinion then proceeds to address the questions and concludes that Rule 8.4(g) does not prohibit a lawyer’s discriminatory but lawful exercises of peremptory challenges, but also that
A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination.
You can read the full opinion here.
