On July 9, 2025, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 517, clarifying how Model Rule 8.4(g) applies to peremptory challenges in jury selection. The Opinion distinguishes between permissible advocacy and unlawful discrimination, offering practical guidance for lawyers during voir dire.

Rule 8.4(g) and Jury Selection
Model Rule 8.4(g) prohibits lawyers from engaging in conduct they know or reasonably should know constitutes harassment or discrimination on protected bases. While the Rule allows “legitimate advice or advocacy,” the Opinion makes clear that strategies violating jury selection laws may sometimes be legitimate under the Rule. 

Under Batson v. Kentucky, 476 US. 79 (1986) and related cases, lawyers in both civil and criminal trials may not strike jurors based on race or gender. Many states have extended this prohibition to other protected classes. At the same time, not all discrimination is prohibited, and courts have permitted strikes based on age, marital status, or other neutral criteria. 

Unlawful Discrimination Is Never Legitimate Advocacy
The Opinion’s central message is if a lawyer knows or should know that a peremptory strike is based on a factor the law forbids, using it violates Rule 8.4(g). No trial strategy, client demand, or consultant recommendation can justify it.

This applies equally to AI-assisted jury selection tools, which are becoming increasingly more common. If software ranks jurors in a way that unlawfully discriminates, the lawyer is still responsible for the resulting strikes. 

The “Knows or Reasonably Should Know” Standard
Rule 8.4(g) violations require that the lawyer either actually knew or “reasonably should have known” the strike was impermissible. The Rules define this as what a prudent, competent lawyer would have recognized under the circumstances.

If a proposed strike raises obvious red flags, the lawyer must investigate. If the stated reasons are pretextual, the strike cannot be made. The duty of inquiry also applies when a client or jury consultant suggests a questionable strike. If the reason is clearly discriminatory, the lawyer must refuse, regardless of client instructions. The same applies when using AI tools for purposes of jury selection. The lawyer must understand at least the general methodology behind the recommendations. Blind reliance is risky, particularly given general concerns about bias in AI outputs, and could lead to a Batson violation and possible ethics complaint. 

Lawful Discrimination Remains Permissible
Importantly, the Opinion does not expand Rule 8.4(g) to cover strikes that are lawful under existing jury selection law. If the law permits exclusion based on marital status, for example, such a strike does not violate Rule 8.4(g), even though marital status is listed among the protected categories of the Rule.

The Opinion reasoned that applying Rule 8.4(g) more broadly would create vague, unworkable standards and risk deterring permissible advocacy. The goal is clarity, and lawyers should be able to follow clear, legally established boundaries.

In short, the ABA’s guidance makes the profession’s expectation clear: effective advocacy must operate within the same boundaries that protect the fairness and equality of the justice system.