Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their limited use, have spurred legal and cultural change. Focusing on jury exclusion Part III shows how ABA Model Rule 8.4(g) in particular might be applied to more effectively challenge and sanction instances of discrimination based on race and sex during voir dire. In so doing, this article reaffirms the productive role that ethics rules can play in preventing forms of misconduct that undermine confidence in the American jury and justice system.
Fordham Law Review
Anna Offit, Playing by the Rule: How ABA Model Rule 8.4(g) Can Regulate Jury Exclusion, 89 FORDHAM L. REV. 1257 (2021).