ABA Ethics Opinion 517: New ABA Ethics Opinion Clarifies Jury Selection Obligations for Lawyers
The American Bar Association has issued Formal Opinion 517, shedding important light on how Model Rule 8.4(g) applies to peremptory jury strikes. The opinion reinforces that lawyers may not use peremptory challenges to unlawfully discriminate during jury selection, even unintentionally. California’s Rule 8.4.1 is closely aligned with Model Rule 8.4(g), so the opinion also provides clarifying guidance to California lawyers in navigating the jury selection process. See CRPC, Rule 8.4.1, Comment [2].
Key Takeaways:
Discrimination Is Never Justified
If a lawyer knows—or should reasonably know—that a peremptory strike violates federal or state anti-discrimination laws (e.g., Batson v. Kentucky), it is a violation of Rule 8.4(g). This holds true regardless of client direction, jury consultant advice, or AI tool suggestions.
Legitimate Advocacy Has Limits
Using a peremptory strike for unlawful reasons cannot be excused as a legitimate trial strategy. Discrimination based on race, sex, or other protected categories under applicable law is unethical and prohibited.
Permissible Discretion Exists
In jurisdictions where peremptory strikes based on factors like age or marital status are not prohibited, lawyers may still exercise discretion, as long as the motive is not discriminatory and aligns with the law.
Duty to Investigate
When a lawyer is unsure about the basis of a proposed strike, they have a professional responsibility to conduct an investigation. If the reason is lawful and nondiscriminatory, the strike may proceed. Otherwise, it must be abandoned.
Accountability Is Key
Lawyers are ultimately responsible for how strikes are used. Even if a client or AI platform suggests a juror be removed, the lawyer must determine whether the action complies with legal and ethical standards.
Why This Matters:
This opinion reinforces a clear message: jury selection is not a loophole for discrimination. It is a critical stage in the justice process that must be conducted with fairness, integrity, and accountability. Lawyers must take a proactive role in ensuring their decisions reflect both the letter and the spirit of anti-discrimination rules.
Read the full opinion here: ABA Formal Opinion 517 (PDF)