An Ethical Tribute Virtue Pays to Vice
Abstract
The ABA’s Model Rule 8.4(g) makes lawyers who engage in discrimination based on certain categories subject to discipline. Comment five to that rule (which I call the Batson exception) states that “a trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g).” Such findings typically require a trial judge to find that a lawyer engaged in purposeful discrimination, however, so there is a disjuncture between the rule and this aspect of comment five. Why is a judicial finding of purposeful discrimination not a basis for discipline under a rule forbidding purposeful discrimination?
This paper examines the history of this comment and discusses it in the context of peremptory challenge practice following Batson v. Kentucky and the efforts of several states to replaces Batson’s purposeful discrimination standard with a less demanding test. The paper argues that the exception reflects practical concerns Batson ignored in favor of a strong presumption of good faith. To the extent the Batson exception is justifiable, the rationale for Batson’s purposeful discrimination standard is weakened. The paper argues that analysis of the Batson exception weighs in favor of the abolition of peremptory challenges.