CBA Record March-April 2026

offers facially neutral reasons, the “rea sonably should know” standard imposes a duty of inquiry. If reasonable inquiry reveals legitimate, nondiscriminatory reasons, the lawyer may exercise the chal lenges. However, if a reasonably compe tent lawyer would recognize the reasons as pretextual, the lawyer must refuse to follow the recommendation. Similar issues may arise when lawyers rely on artificial intelligence software for jury selection. If a software program applies discriminatory criteria in ranking prospective jurors, a lawyer might inad vertently exercise peremptory challenges for discriminatory reasons. The opinion suggests that lawyers should conduct suf ficient due diligence to understand the methodology employed by the juror selec Importantly, the opinion concludes that Rule 8.4(g) does not prohibit discrimi natory peremptory challenges that are lawful under existing case law or statutes. Courts have permitted lawyers to exercise peremptory challenges based on factors such as a prospective juror’s age, marital status, disability, or socioeconomic status. The opinion reasoned that while Rule 8.4(g) generally covers discrimination beyond what other laws prohibit, in the specific context of jury selection, the rule does not impose restrictions beyond those recognized in jury selection law. Creating a different standard for ethics purposes would establish a vague and unworkable standard that might deter legitimate advocacy. The opinion represents important clar ifications for trial lawyers navigating the ethical constraints on jury selection while fulfilling their duty of zealous advocacy within the bounds of the law. Artificial Intelligence in Jury Selection tion programs they use. Lawful Discrimination in Jury Selection

Discriminatory Jury Selection as an Ethical Violation: ABA Opinion 517 PRACTICAL ETHICS BY TRISHA RICH W hen does a lawyer’s discriminatory exercise of peremptory challenges during jury selection violate Model Rule of Professional Conduct 8.4(g), which pro hibits harassment or discrimination in conduct related to the practice of law? The ABA Standing Committee on Ethics and Professional Responsibility addressed this issue in July 2025 in Formal Opinion 517. Illinois Rule of Professional Conduct 8.4(j) is substantially similar to Model Rule 8.4(g). When Discriminatory Jury Selection Violates Ethics Rules The opinion states that a lawyer who knows or reasonably should know that their exer cise of peremptory challenges constitutes unlawful discrimination violates Rule 8.4(g). Discriminatory jury selection that violates the constitutional standards established in Batson v. Kentucky and its progeny cannot be considered “legitimate advocacy” permit ted under the rule. In Batson (and subsequent related opinions), courts have held that lawyers in both criminal and civil cases cannot exercise peremptory challenges based on criteria such as race or gender because doing so violates prospective jurors’ equal protec tion rights under the Fourteenth Amendment. Some states have expanded these protec tions to include additional categories. Knowledge Standard The opinion clarifies that a lawyer’s unlawful exercise of peremptory challenges only violates Rule 8.4(g) where the lawyer “knows or reasonably should know” that their actions are impermissibly discriminatory. Situations may exist where a lawyer violates Batson unknowingly, believing their basis for exercising challenges does not discriminate on impermissible grounds. Model Rule 1.0(j) (and IRPC 1.0(j)) define “reasonably should know” to mean “a lawyer of reasonable prudence and competence would ascertain the matter in question.” Context matters when determining whether this standard is met. Client and Consultant Directions The opinion further addresses scenarios where lawyers may be following directions from clients or recommendations from jury consultants. When a client or jury consultant explicitly acknowledges that their recommendation is based on race, gender, or other protected characteristics, a lawyer who implements that recommendation would be knowingly discriminating. The fact that a lawyer acts at a client’s direction does not make otherwise unlawful conduct legitimate. When peremptory challenges appear to be discriminatory but the client or consultant

Trisha Rich is a commercial litigator and legal ethicist at Holland & Knight; the First Vice President of the Chicago Bar Association; and a past president of the Association of Professional Responsibility Lawyers, the national bar association for legal ethicists.

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