Playing by the Rule: How ABA Model Rule 8.4(G) Can Regulate Jury Exclusion

By Anna Offit

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 American Bar Association Model Rule of Professional Conduct 8.4(g), which regulates professional misconduct, this Article argues that ethics rules may, under certain conditions, deter the exclusionary practices of legal actors. Part I examines the specific history, evolution, and application of revised Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their limited use, can spur legal and cultural change. Focusing on jury exclusion, Part III shows how Model Rule 8.4(g) in particular might be applied to more effectively challenge and sanction instances of race- and sex-based discrimination 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.