Begining with Batson v. Kentucky, 476 US. 79 (1986), trial lawyers in both criminal and civil cases have been officially forbidden from exercising peremptory challenges to potential jurors based on the prospective juror’s race or gender on the theory that this violates prospective jurors’ equal protection rights under the Fourteenth Amendment. It was a utopian ruling and grandstanding by the Supreme Court in deliberate defiance of the Sixth Amendment right of citizens to a fair trial as well as contradictory to the legal profession’s duty of zealous representation.

The majority in Batson fantasized that in many cases racial or gender bias, positive or negative, is will be likely based on the jurors’ characteristics alone. There is a scene in “Airplane! II” where a man on trial for abusing his ex-wive, and all of the jurors are women nursing babies. The film came out a few years before Batson. Courts have permitted lawyers to strike jurors based on a prospective juror’s age, marital status, disability, or socioeconomic status, but especially since the infection of critical race theory and the destruction of race relations initiated by Barack Obama, the fact that an attorney can’t decide in a particular case that he wants as few blacks/whites/ women men as possible without risking a verdict being overturned or being subjected to a disciplinary complaint is one more way progressives have managed to distort the rule of law.

So, naturally, the American Bar Association, having now become a full member of the Axis of Unethical Conduct, has decided to bolster the Batson decision, which really needs to be ove-turned, For this it relies on its controversial and arguably unconstitutional Model Rule 8.4 (g) (which Ethics Alarms has been discussing for years), which reads,

“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.”

It’s a really bad rule, vague and insidious, which is why only a minority of states have adopted it and why some courts struck it down when their state bars tried. How can any lawyer, or anybody at all, “know” what kind of conduct is going to be found discriminatory today, when, for example, criticizing an incompetent Presidential candidate for sounding like a vaudevillian’s doubletalk routine is likely to be called “racist”? (I’m sorry to keep picking on poor Kamala, but I didn’t nominate her…). But the ABA is now more devoted to the woke overhaul of society than it is law or ethics—see this recent post–so ABA Formal Ethics Opinion 517 was inevitable. The only mystery is what took the ABA so long.

Here’s the gist of it:

Rule 8.4(g) presents two principal questions regarding discriminatory challenges. First, in light of Comment [5], 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?…

Striking prospective jurors on discriminatory bases in violation of substantive law governing jury selection is not legitimate advocacy. Conduct that has been declared illegal by the courts or a legislature cannot constitute “legitimate advocacy.” 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.

I have to break in here. Batson is vague and so is Rule 8.4 (g). An ethical lawyer, seeing that his or her client is going to face a jury determined to vote adversely because of a likely bias, should dare the state and the bar to go after him by striking every juror that is part of the biased group. The lawyer for Derek Chauvin should have been able to do anything he could to keep blacks off that jury. The same goes for Donald Trump’s lawyer if the D.C. lawfare cases against had gone to trial. Discriminating is what lawyers must do in jury selection. Saying that they must not engage in “unlawful” discrimination is a No True Scotsman argument.

Back to the opinion…

…A lawyer’s unlawful exercise of peremptory challenges does not violate Rule 8.4(g) unless the lawyer “knows or reasonably should know” that the exercise of a peremptory challenge is impermissibly discriminatory. Many rules incorporate a knowledge standard, and “knows” is a defined term in the Model Rules.¹⁴ There may be situations where a lawyer violates Batson but does not know it, because the lawyer erroneously believes that the lawyer’s genuine bases for exercising peremptory challenges do not discriminate based on impermissible attributes. In that event, the question will be whether the lawyer “reasonably should have known” that the lawyer’s conduct was impermissible. Rule 1.0(j) defines “reasonably should know” to mean that “a lawyer of reasonable prudence and competence would ascertain the matter in question.”

A harder question is raised in this scenario 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. Where the lawyer does not personally intend to discriminate on the basis of a protected class but may be advancing someone else’s intent to do so, the “reasonably should know” standard imposes a duty of inquiry. 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. 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…

A similar question about the lawyer’s culpability may be raised when the lawyer relies on software in making decisions about jury selection. Suppose, for example, that a lawyer uses an artificial intelligence-assisted program to rank prospective jurors and, unbeknownst to the lawyer, the program applies rankings in a manner that would constitute unlawful discrimination (e.g., based on the prospective jurors’ 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). Whether a lawyer “reasonably should know” that the peremptory challenges were impermissibly discriminatory will depend on the circumstances. In the context of an AI-assisted program, lawyers should conduct sufficient due diligence to acquire a general understanding of the methodology employed by the juror selection program… 

It’s all like that, clear as mud, as my father liked to say. The conclusion:

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). 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. 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. However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.

Oh.

Balderdash.

 A lawyer who knows based on competent research, his or her experience and the client’s particular situation that there is  substantial likelihood that individuals of a particular background, ethnicity, religion, gender, sexual orientation or any other characteristic will tend to be biased against the client should be able to strike such individuals from the jury, just as a lawyer who knows based on competent research, his or her experience and the client’s particular situation that there is  substantial likelihood that individuals of a particular background, ethnicity, religion, gender, sexual orientation or any other characteristic will tend to be biased for the client should be able to include such individuals on the jury. A good faith argument that alleged “discrimination” under Batson and its progeny was instead based on zealous representation ought to be a complete defense.