ABA ethics opinion addresses jury selection discrimination from consultants and AI technology
When using peremptory challenges, lawyers should not strike jurors based on discrimination, according to an ethics opinion by the ABA’s Standing Committee on Ethics and Professional Responsibility.
That also applies to client directives, as well as guidance from jury consultants or AI software, according to Formal Opinion 517, published Wednesday.
Such conduct violates Model Rule 8.4(g), which prohibits harassment and discrimination in the practice of law based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”
A lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law, according to the opinion.
The U.S. Supreme Court explained such conduct violates the Equal Protection Clause of the 14th Amendment in Batson v. Kentucky (1986) and J.E.B. v. Alabama ex rel. T.B. (1994). In Batson, a lawyer struck a series of Black jurors in a criminal trial. In J.E.B., a lawyer struck a series of males in a paternity child support action.
The ethics opinion addresses when a Batson-type violation also constitutes professional misconduct under Rule 8.4(g).
Seemingly, if a lawyer commits such a violation, the lawyer also runs afoul of Rule 8.4(g). After all, in both settings the lawyer has engaged in a form of racial discrimination.
“Striking prospective jurors on discriminatory bases in violation of substantive law governing juror selection is not legitimate advocacy. Conduct that has been declared illegal by the courts or a legislature cannot constitute “legitimate advocacy,” the ethics opinion states.
However, Comment [5] to the model rule provides that a trial judge finding a Batson violation alone does not establish running afoul of 8.4.
The comment, according to the ethics opinion, gives “guidance on the evidentiary burden in a disciplinary proceeding.”
For example, in a disciplinary hearing a lawyer may be able to offer “a more fulsome explanation” for why they struck certain jurors. Furthermore, there is a “higher burden of proof” in lawyer discipline proceedings.
The ethics opinion also explains that a lawyer violates Rule 8.4(g) only if they know or reasonably should have known that the exercise of the peremptory challenges were unlawful. The lawyer may genuinely believe they had legitimate, nondiscriminatory reasons for striking certain jurors—such as their age, whether they paid attention during the jury selection process or something else.
According to the opinion, the question then centers on “whether ‘a lawyer of reasonable prudence and competence’ would have known that the challenges were impermissible.”
Also, the opinion addresses the difficult question of what if a client or jury consultant offers nondiscriminatory reasons for striking certain jurors and the lawyer follows such advice. Here, a reasonably competent and prudent lawyer should know whether the client or jury consultant’s reasons were pretextual or were legitimate.
Additionally, the opinion addresses a scenario where an AI-generated program ranks prospective jurors and applies those rankings, unknown to the lawyer, in a discriminatory manner. Lawyers should use “due diligence to acquire a general understanding of the methodology employed by the juror selection program,” the opinion states.
A July 9 ABA press release is here.
Write a letter to the editor, share a story tip or update, or report an error.
