Ladegaard Fails to Factor Rule 5-200 in O'Reilly Editorial

By Michael Strickland
Motions, University of San Diego School of Law
November 2002

At the risk of being called a "pontificating moron," I felt compelled to respond to Tom Ladegaard's op-ed piece in the last issue of Motions ("Bill O'Reilly Fails to Factor the Attorney's Role," October 2002). In defending David Westerfield's defense attorneys, Ladegaard whitewashed news commentator Bill O'Reilly's assertion that the men had acted unethically.

Last September, the Union-Tribune broke the news that Westerfield's attorneys, Steven Feldman and Robert Boyce, had tried to cut a plea-bargain deal in which Westerfield would get a life sentence in exchange for leading prosecutors to Danielle van Dam's body. Expressing outrage that the lawyers knew their client was guilty before going to trial, O'Reilly accused Feldman and Boyce of misleading the jury and called for their disbarment. Challenging O'Reilly's "infinite wisdom," Ladegaard attempted to show that Westerfield's attorneys had acted within the duties of their role as defense counsel.

Ladegaard invoked some distinguished authorities in his argument. Indeed, it perhaps demonstrates hubris for a first-year law student to attempt a rebuttal of an argument that makes reference to the California Bar's Rules of Professional Conduct, the opinion of a Supreme Court Justice and the Sixth Amendment of the U.S. Constitution. But then again, as Justice White was entitled to his opinion, so I am allowed mine.

Rule 5-200 of the California Bar's Rules of Professional Conduct prohibits an attorney from employing means inconsistent with the truth or misleading judge or jury "by an artifice or false statement of fact or law." Applying this rule to the Westerfield defense, O'Reilly concluded that Feldman and Boyce had violated it by suggesting alternative scenarios that they knew were false.

In his editorial, Ladegaard contended that O'Reilly failed "to understand the difference between lying and suggesting scenarios that could have happened." A good point, perhaps, but Ladegaard failed to follow the logic all the way through. If Feldman and Boyce knew that Westerfield had killed seven-year-old Danielle van Dam, then it is axiomatic that they knew that any alternative scenario they suggested could not have happenedin other words, was false. It appears that Ladegaard fails to understand the parity of lying and suggesting scenarios that one knows are untrue.

It seems a reasonable corollary, then, to conclude that Feldman and Boyce violated Rule 5-200. Using untruths to try to raise reasonable doubt in the minds of the jury constitutes "employing means inconsistent with the truth." Such tactics can also be characterized as artifice, used to mislead the judge or jury.

Granted, this logic seems to suggest that an attorney can't represent a client whom he or she knows is guilty. But there is no such prohibition; quite the contrary. In his dissenting opinion in United States v. Wade, Justice Byron White said that "defense counsel has no ... obligation to ascertain or present the truth. ... [We] insist that he defend his client whether he is innocent or guilty."

Feldman and Boyce were therefore within their rights in defending Westerfield, despite their knowledge of his guilteven more, they were upholding the man's right to effective legal counsel under the Sixth Amendment. However, it is an erroneous leap of logic to conclude that they could therefore use whatever means necessary to raise "the specter of reasonable doubt." Rule 5-200 is clear in its aforementioned prohibitions. Even Ladegaard, in claiming that O'Reilly would want a vigorous defense if he were charged with a crime, maintained that a defense attorney should do everything he or she could do "within the law." And Justice White further said in Wade, "I share the Court's view that the criminal trial, at the very least, should aim at truthful factfinding...." (Emphasis added.)

Finally, it is important to look beyond the law. The State Bar only governs attorneys' ethics to the extent that it requires they abide by the Bar's rules in their practice of law. Any unethical attorney can operate at the outer limits of the Bar's rules, hopping in and out of loopholes to avoid discipline. If the Bar even looks into Feldman's and Boyce's conduct (unlikely), the two men will probably escape discipline.

But we are all members of the community first, attorneys (or future attorneys) second. We should be outraged that Feldman and Boyce sought an acquittal for a man they knew was guilty of brutalizing and murdering a little girl. We should be angry that they dragged Danielle's bereaved parents through the mud in order to create (un)reasonable doubt. We should question the professional conduct of these two attorneys.

And we should remember that, had Feldman and Boyce been successful, a child killer would be freely walking our neighborhoods.


©2003 Michael Strickland