N.J. Ethics Panel Rejects Automatic Discipline For Attorney Misuse of Peremptory Challenge

The New Jersey Supreme Court's Advisory Committee on Professional Ethics Nov. 9 refused to adopt an interpretation of an anti-discrimination ethics rule that would have effectively imposed the threat of automatic disciplinary action on lawyers who use peremptory challenges to exclude potential jurors on the basis of race or other impermissible grounds (New Jersey Supreme Court Advisory Comm. on Professional Ethics, Op. 685,11/9/98).

The remedies available to trial courts when such conduct occurs are sufficient to handle the situation, and the "chilling effect" that the threat of nearly certain disciplinary action would add is not a desirable consequence, the panel advised. So long as peremptory challenges are permitted, the committee said, exercise of that right should not routinely expose lawyers to discipline.

Bias Against 'Cognizable Group.' There is no doubt, the committee acknowledged, that the use of peremptory challenges to remove potential jurors on me basis of presumed racial bias violates both me U.S. and New Jersey constitutions. Batson v. Kentucky, 476 U.S. 79 (1986); State v. Gilmore, 103 NJ. 508 (NJ. 1986). The committee also noted that Gilmore applies to challenges against any "cognizable group," including "at a minimum" those defined on the basis of "race, color, creed, national origin, ancestry, marital status or sex."

The question presented to the committee was whether New Jersey Rule of Professional Conduct 8.4(g)-which prohibits lawyers from engaging in a professional capacity in discriminatory conduct because of "race, color, religion, age, sex, sexual orientation, national origin, language, marital status, socioeconomic status, or handicap"-should be invoked to place in jeopardy of disciplinary proceedings any lawyer found to have used peremptory challenges to exclude members of a protected group from a jury on the basis of assumed group bias.

The committee observed that a trial court's finding of a lawyer's impermissible use of peremptory challenges, and subsequent reporting of the incident to the appropriate disciplinary authority, would almost certainly result in a subsequent finding of punishable professional misconduct. The committee therefore concluded that the Gilmore hearing by the trial court would necessarily become part and parcel of a disciplinary hearing against the lawyer.

"[N]either Gilmore nor [Rule] 8.4(g) contemplated such an eventuality," the committee stated. It added that as a practical matter judges might be hesitant to find a Gilmore violation if it automatically exposed the challenging lawyer to disciplinary charges.

Court Remedy Is Sufficient. The committee said that "Gilmore not only establishes a procedure for determining whether peremptory challenges are being used to exclude discrete cognizable groups, but also provides the remedy" by calling for dismissal of the selected jurors and starting anew with a different venire.

The committee also pointed out that nothing in Gilmore suggested the lawyer should be exposed to disciplinary proceedings, and in fact the decision created a presumption of validity of the questioned peremptory challenges.

The "serious question," the committee said, was whether lawyers who exercise peremptory challenges on behalf of their clients should thereby have to face the possibility of disciplinary action. Gilmore's "chilling effect on peremptory challenges is bound to be infinitely greater if the threat of disciplinary action is now added to the mix," the panel warned.

"The giant leap this Committee is being asked to make is to engraft on Gilmore, in addition to the remedy provided by the decision itself, an ethical violation which places an attorney in harm's way each time a peremptory challenge is made against a member of any one of the extensive catalog of cognizable groups," the committee said. "This we refuse to do."

The committee revealed that the ethics inquiry had been made by another standing committee of the New Jersey Supreme Court that is apparently studying whether prosecutors willfully abuse Gilmore by challenging black and Hispanic jurors not simply to exclude them but also to get a more favorable jury panel under Gilmore.

The ethics panel encouraged the standing committee to advise the supreme court of its concerns. However, the panel reiterated its conclusion that "so long as peremptory challenges are permitted, the trial bar should not be routinely exposed to disciplinary action simply by exercising them."