By American Bar Association
The American Bar Association Standing Committee on Ethics and Professional Responsibility recently released a formal opinion that provides guidance to lawyers exercising peremptory challenges in the jury selection process. The opinion states 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).”
Formal Opinion 517 says that 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 and 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. At the same time, the opinion explains that a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.
The Supreme Court of the United States, in a series of decisions beginning with Batson v. Kentucky in 1986, has held that trial lawyers in both criminal and civil cases are forbidden from exercising peremptory challenges based on certain specified criteria such as the prospective juror’s race or gender, because doing so violates prospective jurors’ equal protection rights under the Fourteenth Amendment. But, under state and federal law, not all discrimination is forbidden in this context. For example, courts have permitted lawyers to exercise peremptory challenges based on a prospective juror’s age, marital status, disability or socioeconomic status.
Formal Opinion 517 addresses two principal questions regarding discriminatory challenges. First, 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 says that striking prospective jurors on discriminatory bases in violation of substantive law governing jury selection is not legitimate advocacy because conduct that has been declared illegal by the courts or a legislature cannot constitute “legitimate advocacy.”
The opinion also looks at the question of when peremptory challenges, on their face, are or are reasonably likely to be discriminatory, but the client or jury consultant offers other, nondiscriminatory reasons for exercising them. Explaining that there may be a duty of inquiry about these reasons, the opinion explains that if, upon inquiry, the lawyer ascertains that the client or consultant has sincere reasons that are legitimate, not impermissibly discriminatory, then the lawyer may exercise the peremptory challenges.
Looking to the legislative history of Rule 8.4(g), the opinion provides that to violate Rule 8.4(g) the lawyer’s peremptory challenges must be forbidden by other law like Batson or other law on jury selection.
The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available at www.americanbar.org/groups/professional_responsibility/publications/ethics_opinions.
(https://www.americanbar.org/news/abanews/aba-news-archives/ 2025/07/aba-issues-formal-opinion-517/)
The American Bar Association Standing Committee on Ethics and Professional Responsibility recently released a formal opinion that provides guidance to lawyers exercising peremptory challenges in the jury selection process. The opinion states 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).”
Formal Opinion 517 says that 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 and 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. At the same time, the opinion explains that a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.
The Supreme Court of the United States, in a series of decisions beginning with Batson v. Kentucky in 1986, has held that trial lawyers in both criminal and civil cases are forbidden from exercising peremptory challenges based on certain specified criteria such as the prospective juror’s race or gender, because doing so violates prospective jurors’ equal protection rights under the Fourteenth Amendment. But, under state and federal law, not all discrimination is forbidden in this context. For example, courts have permitted lawyers to exercise peremptory challenges based on a prospective juror’s age, marital status, disability or socioeconomic status.
Formal Opinion 517 addresses two principal questions regarding discriminatory challenges. First, 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 says that striking prospective jurors on discriminatory bases in violation of substantive law governing jury selection is not legitimate advocacy because conduct that has been declared illegal by the courts or a legislature cannot constitute “legitimate advocacy.”
The opinion also looks at the question of when peremptory challenges, on their face, are or are reasonably likely to be discriminatory, but the client or jury consultant offers other, nondiscriminatory reasons for exercising them. Explaining that there may be a duty of inquiry about these reasons, the opinion explains that if, upon inquiry, the lawyer ascertains that the client or consultant has sincere reasons that are legitimate, not impermissibly discriminatory, then the lawyer may exercise the peremptory challenges.
Looking to the legislative history of Rule 8.4(g), the opinion provides that to violate Rule 8.4(g) the lawyer’s peremptory challenges must be forbidden by other law like Batson or other law on jury selection.
The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available at www.americanbar.org/groups/professional_responsibility/publications/ethics_opinions.
(https://www.americanbar.org/news/abanews/aba-news-archives/ 2025/07/aba-issues-formal-opinion-517/)
