The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 517[1], providing guidance for lawyers on the use of peremptory challenges during jury selection. The opinion also addresses reliance on jury consultants or the use of AI and clarifies what constitutes legitimate advocacy under Rule 8.4(g) of the ABA’s Model Rules of Professional Conduct[2].
Background
In the case of Batson v. Kentucky, 476 US. 79 (1986), the U.S. Supreme Court ruled that lawyers are prohibited from exercising peremptory challenges based on the prospective juror’s race, as it violates the prospective jurors’ equal protection rights under the Fourteenth Amendment. While originally decided in the criminal context, Batson has been expanded over the years to civil cases, as well as instances of gender discrimination. Some state laws even expand on this constitutional restriction; however, not all discrimination is forbidden, as courts have permitted lawyers to exercise peremptory challenges based on age, marital status, or socioeconomic conditions.
The Model Rules of Professional Conduct establish standards and expectations lawyers should follow, including an expectation that lawyers will serve as faithful advocates of the law. Formal Opinion 517 primarily focuses on Rule 8.4(g) which provides:
It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
The authors of Model Rule 8.4(g) intended for the rule to function as a broad, overarching directive that is independent of other laws. Subsequently, this provision has been adopted in some, but not all, states.
Defining the Limits and “Reasonably Should Know” Standard
Comment 5 to Rule 8.4 explains that: “A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g).”
This means that a judge’s finding of a Batson violation does not automatically equal a Rule 8.4(g) violation, as other factors can influence disciplinary actions, such as client confidentiality or the fact that a judge may rule quickly without the benefit of a fully developed evidentiary record. Ultimately, it is up to the disciplinary authority to determine the severity of the conduct and whether to investigate the matter further.
The Formal Opinion seeks to further clarify the standards while pointing to the definition of “knows” as used in the Model Rules. If a lawyer unknowingly violates Batson because they mistakenly (but genuinely) believe their reasons for using peremptory challenges are not based on impermissible traits, the question becomes whether the lawyer “reasonably should have known” that the conduct was prohibited. “Reasonably should have known,” is defined by Rule 1.0(j) as “a lawyer of reasonable prudence and competence would ascertain the matter in question,” which further raises the point that any lawyer of reasonable prudence and competence would have been aware that the challenges were misconduct.
Jury Selection and AI
With evolving technology and the growing use of artificial intelligence, new AI programs are being used to investigate, evaluate and/or rank prospective jurors for potential section or exclusion. As with human jury consultants, an attorney cannot avoid responsibility for discriminatory conduct by unreasonably or irresponsibly relying on such machine-generated assistance. Formal Opinion 517 points out that AI-based tools are susceptible to discriminatory results (including by race or gender) due to the incompleteness, inaccuracy, or underlying biases contained within the data sets that the platforms might be trained on. In such a scenario, questions might be raised about the lawyer’s knowledge, competence, or due diligence in utilizing such machine-generated (as well as human) consultants. Hence, lawyers who use AI for these purposes should conduct an appropriate evaluation of the tools employed for the jury selection process.
Conclusion
Formal Opinion 517 reinforces that, at least in states where a version of Model Rule 8.4(g) has been adopted, it is the lawyer’s duty and responsibility to ensure that the jury selection practices is free from intentional or reckless discrimination.
[1] ABA Formal Opinion No. 517 (July 9, 2025)
[2] ABA Model Rules of Professional Conduct (2025)
