The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 517, offering important guidance on how lawyers must ethically exercise peremptory challenges during jury selection.
The opinion affirms 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).” Specifically, eliminating jurors based on characteristics like race or gender, which is prohibited by law, crosses an ethical line. The opinion makes clear that this is not considered “legitimate advocacy.”
This builds on precedent from Batson v. Kentucky (1986) and subsequent cases that prohibit certain types of discriminatory juror exclusions. While some factors, such as age, marital status, disability, or socioeconomic status, may still be permissible bases for challenges under current law, Formal Opinion 517 stresses the lawyer’s responsibility to inquire and ensure the reasoning behind a challenge is legally and ethically sound.
Notably, the opinion warns attorneys against following discriminatory jury selection advice from clients, consultants, or even AI tools if the resulting actions are unlawful.
To read more ABA ethics opinions, visit americanbar.org.
