ABA-517
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| ABA Model Rule 8.4 (g), supplemented by cmt. [5], provides the ethics parallel to the Supreme Court’s prohibition on lawyers’ exercise of peremptory challenges based on prospective jurors’ “race or gender” -- while permitting such challenges based on their “age, marital status, disability, or socioeconomic status.” Cmt. [5] notes that a judge’s finding of improper discrimination does not automatically equate to an ethics violation, which requires a higher burden of proof. A lawyer acts unethically only if she “knows or reasonably should know“ that her challenge impermissibly discriminates. It is no defense that the lawyer acts at the client’s direction. But after an inquiry, a lawyer may rely on the client’s or a jury consultant’s suggestion -- if there are “sincere reasons that are legitimate” and not “ pretextual” or “impermissibly discriminatory.” Lawyers relying on AI to suggest challenges “should conduct sufficient due diligence to acquire a general understanding of the methodology.” While ABA LEO 493 (7/15/20) explained that unethical discrimination “extend[s] beyond unlawful discrimination,“ such “legitimate advocacy” as lawful but discriminatory peremptory challenges do not violate ABA Model Rule 8.4 (g). |