The ABA’s Formal Opinion 517, issued July 9, 2025, draws a clear line in the sand: if a lawyer uses a peremptory strike based on race, gender, or another protected characteristic—and knows or reasonably should know that doing so violates the law—that conduct is not “legitimate advocacy.” It’s unethical under Model Rule 8.4(g), even if a client insists.
But not all peremptory challenges are problematic. The opinion clarifies that lawyers do not violate Rule 8.4(g) when they strike jurors based on factors like age, marital status, disability, or socioeconomic background—so long as those factors are not otherwise prohibited by law.
One key takeaway: lawyers can’t hide behind a client’s directive, a jury consultant’s advice, or an AI tool’s suggestion. If there’s reason to believe the basis for a strike is pretextual or discriminatory, the lawyer must dig deeper and, if needed, decline.
Meanwhile, in Louisiana: No Rule 8.4(g)
Lawyers in Louisiana should take note. Rule 8.4(g) doesn’t exist here.
Louisiana has adopted Rule 8.4(a)–(f) of the ABA Model Rules but has never adopted subsection (g), the anti-discrimination provision. That means Louisiana lawyers are not subject to a separate ethical rule prohibiting biased conduct in jury selection—though, of course, the Batson line of cases and La. Code Crim. Proc. art. 795 still prohibit strikes based solely on race or gender in criminal cases.
In fact, the Louisiana State Bar Association’s Rules of Professional Conduct Committee considered adopting Rule 8.4(g) in 2017 but declined to recommend it. Concerns included vagueness, enforcement uncertainty, and whether the rule was necessary given existing provisions covering misconduct and unlawful discrimination.
Bottom Line for Louisiana Lawyers
The ABA’s Formal Opinion is persuasive, not binding in Louisiana. According to the opinion, discriminatory jury strikes are unlawful under Batson and Louisiana criminal procedure, but not independently sanctionable under Rule 8.4(g)—because it doesn’t exist here. Despite that, Louisiana lawyers must still act ethically and lawfully, but their conduct will be judged under broader provisions of Rule 8.4, not a targeted anti-bias rule.
