This week’s blog entry discusses ABA Formal Opinion 517. That opinion talks about discrimination in the jury selection process under ABA model rule 8.4(g) which prohibits attorneys from discriminating on the basis of various protected characteristics. As readers of my blog know, this has been a long-standing interest of mine. For example, we discussed peremptory challenges and persons with disabilities, here and here.
The blog entry is divided into the categories of highlights of opinion and thoughts/takeaways. It’s pretty short, so the reader will probably want to read the whole thing, but of course the reader is free to focus on either category or both. Finally, I am a member of the ABA Law Practice Ethics and Professionalism Committee. However, the opinions contained in this blog entry, what you will find in the thoughts/takeaways section of this blog entry, are my own and do not represent or are meant to represent the opinions of any other member of the committee or the committee itself.
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Highlights of Opinion
- 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 results 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 constitutes 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.
- Rule 8.4(g) provides: 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.
- In a footnote, the opinion says that United States v. Harris, 197 F.3d 870 (7th 1999), decided that persons with disabilities do not have the right to have Batson challenges exercised on their behalf.
- Striking prospective jurors on a discriminatory basis 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. Comment [5] states that a trial judge’s finding of unlawful juror discrimination is not, alone, enough to prove a violation in a discipline proceeding.
- A judge’s finding of a Batson violation, under the procedures set forth in the case law does not automatically equate with a Rule 8.4(g) violation, particularly given the higher burden of proof that may apply in disciplinary proceedings.
- 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. 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.
- The history of what is now Comment [5] to Model Rule 8.4 (previously Comment [3]) suggests that the “Batson exception” to Model Rule 8.4(g) was based on concerns voiced by the ABA Criminal Justice Section that a trial judge’s subjective decision in the midst of trial to disbelieve a lawyer’s neutral explanation for striking a juror should not become conclusive evidence in a later disciplinary prosecution over discriminatory conduct.
- In addition, Comment [5] is limited to a “trial judge’s” finding of juror discrimination. It says nothing about how a decision by another court (such as an appellate court or a court conducting a habeas review) based on a more fulsome record should be treated if that court finds that a lawyer engaged in unlawful juror discrimination.
- 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. 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.” Ordinarily, when a lawyer decides whether to exercise peremptory challenges, rather than deferring to or relying on someone else, the lawyer will know the genuine reasons for the challenges.
- Even so, the lawyer may be mistaken about the legal significance of these reasons. In that event, the question will be whether “a lawyer of reasonable prudence and competence” would have known that the challenges were impermissible.
- Whether the lawyer has the requisite culpability will be a more difficult question when, to promote the attorney-client relationship or for reasons of trial strategy, the lawyer defers to others’ judgment.
- 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. That a lawyer acts at a client’s direction does not make otherwise unlawful conduct legitimate. When clients ask lawyers to engage in unlawful conduct, the Model Rules require lawyers to refuse.
- 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. 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.
- 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.
- In the context of jury selection, a trial lawyer whose peremptory challenges are discriminatory but lawful has not violated Model Rule 8.4(g).
- Therefore, even where unlawful juror discrimination is client directed, the lawyer has no obligation under the Model Rules to follow that direction. On the contrary, the lawyer would have an obligation to consult with the client about the manner in which the lawyer is legally permitted to conduct jury selection and explain any relevant constraints on the lawyer’s ability to carry out the client’s desired strategy.
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Thoughts/Takeaways
- As noted at the beginning of this blog entry, we have discussed peremptory challenges and persons with disabilities before. The ABA reference to United States v. Harris is unfortunate because that case is no longer good law. Harris holds that persons with disabilities cannot have Batson challenges exercised on their behalf because they fall in the rational basis class. However, Tennessee v. Lane, here, holds that when it comes to accessing the court system, persons with disabilities are not in the rational basis class at all. Accordingly, since the basis for the holding in Harris has clearly been superseded by Tennessee v. Lane, persons with disabilities have the ability to have Batson challenges exercised on their behalf, and United States v. Harris is no longer good law.
- The other piece missing from this opinion is the ADA itself. As we first discussed in the blog here, complying with the ADA is a nondelegable duty. Also, lawyers and judges are subject to the ADA themselves when it comes to their actions in the courtroom either under Title II (if they work for a nonfederal governmental entity), title III (if they are part of a private law firm), or Title V (retaliation and interference provision of 42 U.S.C. §12203). So, a litigating attorney in the courtroom that does not understand their obligations under the ADA runs a real risk of interfering with ADA protected rights. A judge runs the risk of not only interfering with ADA protected rights but depending upon what they do when the rights are made known to them, retaliation as well. Of course, none of this accounts for any immunities, but even so the liability risks remain. See also this blog entry.
- Not all states have adopted the ABA model rule on nondiscrimination. One wonders if this opinion won’t act as a disincentive for states considering adopting this rule to not do so.
- “Reasonably know,” means that a lawyer a reasonable prudence and competence would ascertain the matter in question (this kind of standard is very similar to a legal malpractice standard). With respect to persons with disabilities, that becomes incredibly complicated under this rule because lawyers should know something about the ADA as they have a nondelegable duty to know the ADA. So, you may need to have expert testimony as to what the ADA requires of them (serving in this capacity, as readers know, makes up a large part of my consulting practice).
- Determining whether a decision to exclude a juror is based upon a disability or some other factor might be very difficult to ascertain. In other words, what is causation under this rule? Is it solely by reason of (§504), or is it on the basis of/by reason of (ADA). The distinction makes a difference. ABA Formal Opinion 517 doesn’t say what the causation standard is.
- The opinion says that if the lawyer doesn’t personally intend to discriminate on the basis of a protected class but is advancing someone else’s intent, including AI, to do so, a duty of inquiry arises, which brings us back to causation…
- As the ABA Formal Opinion reads, for discipline to ensue, a fuller record than just the granting of a Batson challenge will have to be made.
- Tennessee v. Lane, here, is a must read for anyone dealing with a person with a disability as a prospective juror.
- I have not been called for jury duty for years. Some states have statutes allowing persons with disabilities to get out of jury duty. Georgia has such a statute but it is supposed to only work with the consent of the prospective juror with a disability, though I don’t know if that is the actual practice.
- There is case law out there saying that using AI to discriminate violates the ADA. See this blog entry. Both the EEOC and the DOJ during Pres. Biden’s term put out guidances on that. Those guidances, discussed here, which have since been rescinded, are still very helpful as a matter of preventive law.
- Batson is the criminal version; the civil version is this case.