Nathanael Wright was recently quoted in a Massachusetts Lawyers Weekly article related to an American Bar Association opinion that concludes that jury strikes for bias violate ethical rules. Attorney Wright provided detailed opinions regarding issues with the opinion and issues with perceived discriminatory juror challenges during jury selection.

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ABA opinion concludes biased jury strikes violate ethics rule | Massachusetts Lawyers Weekly

ABA opinion concludes biased jury strikes violate ethics rule

Lawyers deemed accountable for consultant/AI guidance

Pat Murphy

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In brief

• ABA Formal Opinion 517 clarifies ethics rule on discriminatory juror challenges
• Discriminatory jury strikes violate Model Rule 8.4(g)
• Lawyers liable even if bias stems from client or AI advice
• Opinion applies to both civil and criminal jury selection

A newly issued American Bar Association ethics opinion makes clear that attorneys who use peremptory challenges to exclude prospective jurors on the basis of race or other unlawful factors are violating professional conduct rules.

“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),” states Formal Opinion 517, issued on July 9 by the ABA’s Standing Committee on Ethics and Professional Responsibility. “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.”

Moreover, the opinion places lawyers squarely on the hook for unlawful discrimination that may result from following a client’s wishes, guidance provided by jury consultants, or output from jury selection technologies.

“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,” the opinion states.

The opinion, which addresses jury selection in both civil and criminal cases, is an important step forward in one sense, according to Jane Peachy, president of the Massachusetts Association of Criminal Defense Lawyers.

“Even though we already knew that it was unconstitutional to discriminate on the basis of race and gender in jury selection, making it an ethics rule places an added burden and check on the attorney in the jury selection process,” Peachy said.

But she emphasized that the ABA opinion is not binding.

Providence trial attorney Nicole J. Benjamin welcomed the guidance provided by the opinion.

“Formal Opinion 517 is significant in that it serves as an important reminder that, under Rule 8.4(g) of the Model Rules of Professional Conduct and the corresponding Rule 8.4(d) of the Rhode Island Rules of Professional Conduct, it is professional misconduct for a lawyer to discriminate against litigants, jurors, witnesses or other lawyers based on certain protected characteristics,” said Benjamin, a past president of the Rhode Island Bar Association.

Even though we already knew that it was unconstitutional to discriminate on the basis of race and gender in jury selection, making it an ethics rule places an added burden and check on the attorney in the jury selection process.

— Jane Peachy, MACDL president

Boston attorney Nathanael E. Wright, a civil and criminal litigator and former prosecutor, was less enthusiastic about the ethics opinion.

“It buttresses the rule that already exists,” Wright said. “It’s always been the rule that if someone is struck from a panel, and the other side believes it is discriminatory, there’s a Batson challenge and [counsel] is required to explain why they did that.”

But Boston personal injury attorney J. Tucker Merrigan lauded the new guidance.

“We are at our best as lawyers when we are accountable to each other,” Merrigan said. “This [opinion] creates an expectation that you need to be accountable for your peremptories, particularly when an issue of race or gender may be involved in a case, or when there’s really no other articulable reason as to why you may have struck the juror.”

Model Rule 8.4(g)

Model Rule 8.4(g) provides that 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.”

The ABA rule includes a caveat that paragraph (g) “does not preclude legitimate advice or advocacy consistent with these Rules.” Further, a comment to the rule makes clear 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 [opinion] creates an expectation that you need to be accountable for your peremptories, particularly when an issue of race or gender may be involved in a case, or when there’s really no other articulable reason as to why you may have struck the juror.

— J. Tucker Merrigan, Boston

Formal Opinion 517 takes the position that striking prospective jurors on discriminatory bases in violation of existing law cannot be considered legitimate advocacy.

“Conduct that has been declared illegal by the courts or a legislature cannot constitute ‘legitimate advocacy,’” the opinion says. “Put another way, a lawyer who violates Batson has engaged in unlawful discrimination in the jury selection process which, by definition, cannot be deemed ‘legitimate’ conduct.”

Benjamin said it was important that the committee clarified the limits of Rule 8.4’s non-discrimination provision.

“Formal Opinion 517 recognizes that not all forms of discrimination covered by Rule 8.4 constitute discrimination under Batson and its progeny,” she said. “For example, some courts, including the 1st Circuit, have not extended Batson to age discrimination. In that instance, the formal opinion concludes that the substantive law will continue to control permissible use of peremptory challenges in jury selection.”

In its 1986 decision in Batson v. Kentucky, the U.S. Supreme Court held that the use of peremptory challenges to remove a potential juror from the jury pool based on race violates the Equal Protection Clause of the 14th Amendment.

The majority in Batson cited with approval the Supreme Judicial Court’s 1979 decision in Commonwealth v. Soares.

Like Batson, Soares involved the prosecution’s use of peremptory challenges to exclude Black jurors. The SJC held the exercise of peremptory challenges to exclude prospective jurors solely on the basis of their sex, race, color, creed or national origin violates Article 12 of the Declaration of Rights.

Massachusetts Rule of Conduct 8.4, which defines “professional misconduct,” does not include a provision tracking the language of the ABA’s Rule 8.4(g).

By way of contrast, Rhode Island Rule of Professional Conduct 8.4 expressly addresses juries. Rule 8.4(d) defines conduct that is prejudicial to the administration of justice as including “discriminatory treatment of … jurors … based on race, national origin, gender, religion, disability, age, sexual orientation or socioeconomic status.”

While Peachy said she agrees with many of the conclusions reached by the ABA’s standing committee, the best way to combat discriminatory use of peremptory challenges is for courts to allow more in-depth attorney voir dire, she said, which is allowed in state court but not in federal court where she conducts much of her practice.

“When the attorneys are able to gather meaningful information about a juror and their views on topics that are relevant to the case before them, then the lawyer doesn’t have to rely on biases and assumptions about that juror, allowing them to exercise those peremptories in an intelligent way,” she said. “It also allows the defense lawyer making the Batson challenge to make more intelligent arguments as to why a prosecutor’s stated reason for striking might not be legitimate.”

Proving misconduct

The ABA opinion explains why a court’s finding that a peremptory challenge was discriminatory is not dispositive of whether a lawyer has violated Rule 8.4(g).

“A disciplinary hearing may yield more complete information and enable the lawyer to offer a more fulsome explanation for exercising peremptory challenges than may have been available during jury selection in the trial in question,” the opinion states. “For example, to preserve client confidentiality, the lawyer may have provided limited information about the reasons for peremptory challenges or the judge may have needed to make a quick ruling without a full and fair evidentiary hearing. In addition, the extent and severity of unlawful juror discrimination is relevant to a disciplinary authority’s decisions, including whether to investigate the matter at all.”

Wright noted that often it is extremely difficult to establish at trial that a peremptory strike was discriminatory.

“If a lawyer presents a strike — and it’s perceived to be a discriminatory strike — but the lawyer gives a valid reason and the judge buys it, then what do you do?” he asked.

Formal Opinion 517 concludes that a violation of Rule 8.4(g) occurs “when the lawyer ‘knows or reasonably should know’ that the exercise of a peremptory challenge is impermissibly discriminatory.”

The committee cites several situations in which a lawyer inadvertently violates Batson because the lawyer erroneously believes there is a genuine basis for exercising peremptory challenges. The scenarios include a client directing a lawyer to exclude certain prospective jurors or a jury consultant retained in a case recommending striking certain members of the venire who are of a particular race or gender.

“If the client or jury consultant volunteers or acknowledges that the reason is race- or gender-based, then the lawyer who implements the client’s instruction or the consultant’s suggestion would be knowingly discriminating,” the ABA opinion states. “That a lawyer acts at a client’s direction does not make otherwise unlawful conduct legitimate.”

Wright noted that the client is supposed to assist in the selection of jurors.

“But if the client says, ‘I don’t like that white guy,’ and the lawyer strikes the juror, that’s not going to fly when the lawyer says at the Batson hearing he struck the juror because the client told him to.”

The opinion recognizes that the question becomes more complicated when the client or jury consultant offers other, nondiscriminatory reasons for exercising peremptory challenges.

“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; if an objection is made, or the judge questions the lawyer’s motivations sua sponte, the lawyer may advance those reasons,” the opinion says. “But if a reasonably competent and prudent lawyer would know that the reasons are pretextual, and that the proposed exercise of peremptory challenges is unlawful, then the lawyer must refrain from relying on the client or consultant.”

AI-generated guidance

Rather than impermissible factors, current research underlying jury selection is more focused on social media profiles identifying the types of people who might be prejudicial against one party’s case, Merrigan noted.

“It provides an important opportunity for the parties to be able to be sure that somebody with extreme biases or prejudices is not seated on a case and that the parties have a neutral jury,” he said. “I don’t see a lot of [jury selection programs] yet that use analytics, but with the way the world is evolving, that is absolutely on the horizon.”

According to Wright, the most important aspect of the ABA opinion addresses emerging AI technologies.

The opinion delves into ethical issues that arise when an attorney uses computer software to help select a jury. For example, it points to the use of an AI-assisted program that, unbeknownst to the lawyer, ranks prospective jurors using impermissible factors such as race or gender.

“It is conceivable that the lawyer could strike jurors for unlawfully discriminatory reasons, constituting purposeful discrimination in violation of Batson, even if the lawyer had no intention of doing so (for example, if the AI-assisted program also provided seemingly neutral reasons for rankings),” the opinion says. “Whether a lawyer ‘reasonably should know’ that the peremptory challenges were impermissibly discriminatory will depend on the circumstances.”

In that regard, the standing committee emphasized that lawyers should conduct due diligence to acquire a general understanding of the methodology employed by any AI-assisted programs they use in jury selection.

“With AI-generated recommendations, you need to be able to explain the factors [the software] is using to make its recommendations,” Wright said. “If it comes down to a neutral basis, you’ll be fine. But if the lawyer isn’t asking the right questions, they’ll be in trouble because then it comes down to whether they knew or should have known.”