In 2024, Maryland adopted Md. Rule 16-310 to explore the use of expanded voir dire, including the possibility of attorney-conducted voir dire. The drafters envisioned a two-year study period, and the Rule was to sunset on January 1, 2026. However, on October 22, 2025, the Supreme Court will hold an open meeting to discuss extended the sunset provision to allow for an additional six months of study in anticipation of potential changes to Rules 2-512 and 4-312 to allow “the parties to obtain information that may provide guidance for the use of peremptory challenges” as an appropriate purpose for voir dire.
Like many of you, I am curious as to how jury selection will play out in Maryland. under the expanded voir dire program. I wonder if it will be like my experience in Virginia.
To aid stakeholders, on June 16, 2025, Judge Laura Ripken, the Chair of the Expanded Voir Dire Pilot Program Advisory Board, issued guidelines for expanded voir dire with the goal of providing lawyers with guidance so lawyers can prepare as expanded voir dire moves forward. Judge Ripken and her board provided information on how a pilot judge in a pilot jurisdiction might conduct expanded voir dire in the jury selection process, including methods and styles for conducting expanded voir dire.
While expanded voir dire may give lawyers additional information to consider for strikes, there remain significant ethical and legal limitations on the use of peremptory strikes.
In Maryland, the ethical rules that are implicated include Rules 19-303.4 (Fairness to Opposing Party and Attorney), 19-304.4 (Respect for Rights of Third Persons) and 19-308.4(e) (Misconduct-discrimination). Rule 19-308.4(e) is directly on point. It provides that a lawyer may not: “knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this section.”
ABA Model Rule 8.4(g) is structured similarly. This raises the question of whether expanded voir dire creates potential ethical issues for Maryland attorneys when exercising peremptory strikes which involve eliminating a potential juror based on gut feel or another potentially discriminatory reason. Recognizing these concerns with expanded voir dire, on July 9, 2025, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 517 to provide ethical guidance to lawyers about peremptory strikes. The opinion focuses on the question of whether the exercise of peremptory strikes in a potentially discriminatory fashion is an ethical violation. This is because, as the authors note, “it is clear that, under state and federal law, not all discrimination is forbidden in [the] context” of peremptory strikes.
Under this scenario, there is clearly a tension between the rules and the purpose of a peremptory strike. But, even under the ABA Model Rules, if a trial judge rules that a lawyer’s use of strikes violates the principles in Batson v. Kentucky, 476 U.S. 79 (1986), the discriminatory basis does not alone establish a violation of Rule 8.4(g). As is often the case, details matter. Legitimate advocacy, such as when the lawyer can articulate non-discriminatory or another appropriate basis for the strike, is proper.
Evaluating the model rules, the standing committee focused on the rule language of “knows or reasonably should know” that the conduct is discriminatory. Maryland takes it a step further, adopting a “knowingly” standard for Rule 19-308.4(e).
The standing committee addressed other concerns. For example, if a lawyer is using a jury consultant, where the client instructed the lawyer to make a particular strike, or when using artificial intelligence to evaluate the panel. Under these scenarios, the committee urged lawyers to use independent judgment if the use of the strikes may be discriminatory. The committee also smartly recommends that lawyers avoid using pretextual strikes. Lawyers must also remain mindful of client obligations because, at the end of the day, using strikes in a discriminatory, but lawful manner may be best for the client and does not violate the Rules of Professional Conduct.
This article originally appeared in The Daily Record on September 4, 2025.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.