"Legal rules ensure fidelity to legal duties."1
I. PREFACE: THE "LAUGHING GUY" STATEMENT
On October 14, 2008, a Florida grand jury indicted Casey Marie Anthony for the death of her minor child, Caylee Marie Anthony.2 In a seven count indictment, the grand jury charged Casey Anthony with capital murder, aggravated child abuse, and aggravated manslaughter, with additional charges relating to provision of false information to law enforcement personnel.3 During closing arguments in the high-profile murder trial, defense counsel, apparently agitated by the snickering and chuckling of the State's attorney, uttered the widely-broadcasted statement:
"We're talking about cold hard evidence. Evidence that points to one person, and one person only. And he can get up here and lie all he wants, and dance around the truth, but the truth is the truth and-and- depending on who's asking the questions, whether it's this laughing guy right here [pointing forcefully at Assistant State Attorney Ashton] or whether it's me."4
This "laughing guy" statement heard all across the country on July 3, 2011, is illustrative of the nexus between professionalism and legal malpractice.
Defense counsel Jose Baez's unprofessional reference and gesture towards Assistant State Attorney JeffAshton garnered an immediate objection from the State. Chief Judge Belvin Perry, presiding over the highly-televised matter, immediately sustained the objection and demanded both parties approach the bench. The Court subsequently chastised both parties for their inappropriate behavior: Attorney Ashton for acting in an unprofessional manner by chuckling and laughing during opposing counsel's closing arguments, and Attorney Baez for referencing the behavior in a similarly unprofessional manner. As the Court noted, both parties were not just unprofessional, but they each also violated a court order prohibiting emotional outbursts and gestures during the course of the trial.5 The attorneys' actions exposed them to both (1) potential court sanctions, and (2) disciplinary action by the Florida Bar.6
The defendant in the case was subsequently acquitted of the first-degree murder charge.7 Had Casey Anthony been convicted of murder, she might have been able to bring claims against her attorney (already vulnerable to court-imposed sanctions and Bar discipline) for ineffective assistance of counsel, in part due to his outburst during closing arguments.8 As an attorney for the State, and pursuant to the immunity granted by the Federal Torts Claims Act, Attorney Ashton would have been immune from any tortious legal malpractice claim despite his display of a lack of professionalism during the course of the trial.9 Attorney Baez's display of a lack of professionalism, however, could have been the basis for a potential legal malpractice claim against him. "Laughing guy" or not, the issue of professionalism and its potential correlation to legal malpractice claims is no laughing matter.
Over the years, competence and effectiveness have been important benchmarks of a "good" lawyer.10 Empirical data now suggests that a lawyer's success and effectiveness is inextricably linked to the lawyer's professionalism.11 The public expectation of effective lawyering presumes a high degree of professionalism.12 Meeting these expectations reflects positively on a lawyer's profitability. Other lawyers make referrals, and clients are more likely to consistently patronize more professional attorneys. Contrarily, lawyers who practice "close to or over the line of malpractice and ethical rule violations will make mistakes that lead to financial setbacks and lower profitability."13 Even setting aside economic concerns, the legal profession has increasingly voiced its discomfort with both the state of professionalism exhibited by lawyers and the perception of a lack of professionalism held by the general public.14 Examples of lawyers behaving badly-such as attorneys falling asleep in court,15 outrageous deposition behavior,16 disrespectful behavior in17 and out of18 court (even in their capacity as elected officials19)-have garnered considerable attention. …