Document Type

Article

Publication Date

Winter 3-20-2026

Abstract

In an American courtroom, litigants are divided across an aisle, a gavel grants or divests rights, and a community takes sides. This creates a narrative of duality in the justice system, which many believe is vital to the adversarial legal system. A criminal trial is seen as perpetrator versus victim, but the legal posture is actually government versus individual. In fact, a prosecuting attorney has ethical obligations not just to victims, witnesses, and the broader community, but to defendants as well, in part due to their tremendous discretion to bring or dismiss criminal charges. A prosecutor’s power is far too immense to deploy it with partisanship and without caution.

This essay argues that prosecutors have an ethical duty to both implement diversion programs and divert defendants likely to succeed in a diversion program, and the model rules should be amended to reflect this duty. First, I review current guidelines regarding prosecutorial ethics related to diversion and criminal justice reform. Then, I survey different types of diversion programs and discuss benefits and challenges of prosecutor-led diversion, court-led diversion, and jail diversion. Next, I discuss two cases where courts overturned a prosecutor’s decision to deny diversion to a defendant. I analyze how these cases demonstrate that denial of diversion can violate existing ethical duties and discuss the challenges of prosecutorial oversight. Finally, I propose an addition to the Model Rules of Professional Conduct to proactively prevent this harm and promote justice.

Comments

Selected as one of three finalists for the 2025 Robert D. Reif Fellowship in Legal Ethics and Professional Values.

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