The ABA Standing Committee on Ethics and Professional Responsibility issued a Formal Opinion regarding discrimination in jury selection, based in large part on ABA Model Rule 8.4(g), which has been adopted in some, but not all, States.  In sum:

It is not “legitimate advocacy” for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. Hence, 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). A lawyer may not, in this regard, rely on the fact that he or she was following a client’s directive, a jury consultant’s advice, or an AI system’s guidance, where the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination.

With respect to AI-based tools in particular, the Committee posits, 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. See ABA Formal Op. 512 (2024) (‘lawyers should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others who can provide guidance about the relevant GAI tool’s capabilities and limitations’).”

The Committee, at the same time, makes it clear that: “A trial lawyer whose peremptory challenges are discriminatory but lawful has not violated Model Rule 8.4(g)…. The purpose of the Model Rules is to articulate clear and understandable standards of conduct to which lawyers can adhere. Applying Model Rule 8.4(g) to conduct that complies with the substantive laws of jury selection but still may constitute ‘discrimination’ under a different definition would create a vague and unworkable standard for the interpretation of Model Rule 8.4(g) and would risk deterring conduct which could arguably be characterized as legitimate advocacy. Courts recognize that jurors’ attributes such as age and marital status that are not forbidden grounds for exercising peremptory challenges are, conversely, permissible, race-neutral bases for such challenges. Although courts are empowered to supervise the conduct of lawyers – which includes amending and adopting rules of professional conduct – there is nothing in the text or history of the Model Rules that suggests that Model Rule 8.4(g) was intended to establish further restrictions on the use of peremptory challenges in jury selection.”

 

ABA Formal Opinion No. 517 (July 9, 2025).