Posted on May 20, 2011 by David Shulman

Standing With My Fellow Legal Bloggers Against an Attempt to Chill Speech

My blog is usually about estate planning, probate, asset protection, taxes, and related matters.

Usually, but not always.

Today I'm going to venture a bit into free speech, defamation, criminal law, and ethics.

I've written about Legal Marketing and Ethics Before

Last fall I wrote a number of posts on the so called "Jewish American Bar Association". You can read the links in the previous sentence for more information (or the Sun Sentinel's article here), but, in summary, I saw a bench ad that I found deceptive and offensive, both as a Jew and as a lawyer. I did some research on the nature of the company, who its owners were, what type of entity it was, and, based upon the undisputed and incontrovertible facts, I expressed my opinion. I used words like "shockingly stupid," "anti-Semitic," and "deliberately misleading."

The bench ad was taken down, and the organization's website was changed.

The person behind the so called "Jewish American Bar Association" was very upset that I didn't contact her for a comment, that I was "mean," and that I didn't write about it from "both sides." She subsequently wrote an article about me entitled "Attacked by an internet Bully? What can you do? The writer's own story."

A few of my friends thought I was crazy. They asked me, "Aren't you afraid of getting sued?" My response was - for what? There is no basis for suing me. All of the facts that I wrote were true, and my opinions were just that -- my opinions.

Which brings us to the case of Joseph Rakofsky.

For those who think that the rest of the post is too long to read, I'll give you the Cliff's Notes:

  1. The Washington Post reports that a Judge declared a mistrial in a murder case and questioned the young defense lawyer's (Rakofsky's) competency and ethics.
  2. Lots of bloggers write about the story, do their own research, report their additional, facts and add their own opinions.
  3. Rakofsky sues almost everyone who wrote about the case (link to original complaint).
  4. After people write critically about the lawsuit, he sues even more people. (link to amended complaint).

I'll try to briefly recount the facts.

Recent Law Grad who has never tried a case, inappropriately takes on a first degree murder trial and shocks the Judge with his incompetence.

According to an April 1, 2011 story in the Washington Post, entitled "D.C. Superior Court judge declares mistrial over attorney's competence in murder case," Rakofsky, 33, a New Jersey attorney a few years out of law school, was hired to be the attorney for one Dontrell Deaner in a murder trial. The article reports that Judge Jackson told Rakofsky that the judge was "'astonished at [Rakofsky's] performance and at his 'not having a good grasp of legal procedures' before dismissing him." The article further states that Rakofsky told the jury during opening statements that he had never tried a case before.

If you're like me, and not an attorney that practices criminal law, you might not know (as I did not originally know) that a mistrial isn't good. In fact, it turns out that a mistrial is bad. A mistrial for a poor defendant in a murder case who was denied bail, means that the defendant will probably have to sit in jail for almost a year before the case is retried. In fact, in April, Deaner's new trial was set for January 23.

The article further reports that the Judge was angered that Rakofsky sent an email to his investigator to, "'trick' a government witness into testifying in court that she did not see his client at the murder scene." The article states that "the judge told Rakofsky that his performance in the trial was “below what any reasonable person would expect in a murder trial.

A subsequent article in the Washington Post reported that the defendant's grandmother paid Rakofsky $7,700, which was not refunded.

An article in the Washington City Paper states, "Some lawyers might be bummed to have their first trial, a murder trial, tossed out because of incompetence. Joseph Rakofsky isn't that kind of lawyer. He bragged about it on his Facebook page. "1st-Degree Murder...MISTRIAL!" he typed in his status update. Seven of his friends clicked "like."

The Blogosphere, especially the criminal law portion of it, (rightfully) goes into overdrive.

The story was then picked up by popular legal blog, Above the Law in a piece written by Elie Mystal, "Mistrial After Judge is Astonished by Touro Grad's Incompetence." (Full disclosure: Mystal also wrote a story for Above the Law about my posts on the Jewish American Bar Association, and I have corresponded with him before).

From there, the story exploded into the legal blogosphere, especially among those lawyers who write about criminal law, marketing, and ethics. Criminal defense attorneys were shocked that someone who has never tried a case would agree to take on a murder defense. I won't rehash it here as I am not a criminal defense attorney, but see:

My fellow Brandeis alum, Carolyn Elefant, who is not a criminal law attorney but writes a blog focuses on solo practitioners wrote "From tiny ethics mishaps, do major missteps grow?"

Much was written about how Rakofsky's website (now mostly scrubbed from the internet) was full of puffery and exaggerations about his (complete and total lack of) experience. For more on this,  Texas attorney's Mark Bennett's post, The Object Lesson of Joseph Rakofsky. Bennett points out the Rakofsky's blog includes fake stock pictures of gray haired lawyers who aren't Rakofsky, and statements like "We, the lawyers at the Rakofsky Law Firm, are the only people who can protect you [i.e. a criminal defendant] in this way." (Emphasis added by me).

After a bevy of of posts in April, the issue died down, at least among bloggers.

That is, until Rakofsky sued "the internet."

Rakofsky sues the internet.

Around May 11, Rakofsky, a New Jersey-only attorney who botched a trial in Washington, DC, filed a defamation lawsuit in New York against 74 different parties, including the Washington Post, Above the Law, The American Bar Association, the above mentioned bloggers (and more), law firms, blogs themselves, and email addresses. The lawsuit  (linked here) was dubbed "Rakofsky v. The Internet" by Scott Greenfield.

The rambling apologia accused the judge of "slander[ing] Rakofsky's knowledge of courtroom procedure." (Paragraph 110 of the original complaint). The complaint stated that Rakofsky did not know why the judge would do such a thing, but hypothesized that the judge's "anger may have been prompted by the diligence and zeal with which Rakofsky conducted his defense in the interest of the client as much as anything else, rather than any shortcoming in Rakofsky's knowledge of court procedure."

So Rakofsky's complaint stated that the judge didn't like him because Rakofsky tried too hard, much like New Gingrich cheated on his wife because he loved America too much, or Ike beat Tina because he loved her too much.

The complaint next spends the next 50 or so pages going through each and every person who ever wrote about the case, and repeats the same mantra, that each and every defendant maliciously defamed him by truthfully reporting that the Judge thought that Rakofsky was a schmendrick. Rakofsky's point seems to be that the judge didn't declare a mistrial because Rakofsky was incompetent, but that the judge allowed Rakofsky to voluntarily withdraw from the case for reasons that had nothing to do with Rakofsky's incompetence.

In addition to asking for money, what the lawsuit really wanted was to "permanently restrain[] [the] defendants from publishing the name, portrait, or picture of plaintiff without her [sic] consent." In other words, Rakofsky wants the court to fix the internet so that when people search for him, there aren't a whole bunch of posts about him acting like a schmenrick.

The internet strikes back (and Rakofsky acts like a bigger schmendrick).

While the "big boys" like the Washington Post and the ABA Journal have been publicly silent about the lawsuit, the bloggers who have been sued have not been. Additionally, bloggers who were not included in the initial lawsuit chimed in. Various people wrote about the jurisdictional problems with the lawsuit (suing in New York?), with the underlying legal problems, with Rakofsky's attorney's similar nonsensical and puffery filled website, and how this is going to do nothing to put him on the road to restoring his reputation.

Mark Bennett has been keeping a compendium of the posts in response. Read them. They're good.

Instead of taking this universal criticism to heart and withdrawing his lawsuit, Rakofsky doubled down. He amended his complaint and sued some of the people who commented on the lawsuit (along with adding fodder from some of the original defendants), including a claim of "intentional infliction of emotional harm." The amended complaint is here.

Why I decided to chime in and pile on.

Up until now, I had refrained from writing about the case on my blog. First, I am not a criminal defense lawyer, and so writing about someone else's incompetence in that area is not something that I feel comfortable doing. Of course, I do not and will not hesitate to write about lawyers and non-lawyers incompetently engaging in estate planning. But I left the criminal law issues to the experts.

Then when the lawsuit was filed, I thought about writing about it, but I didn't have anything new or different to say about this that hasn't already been said by multiple people who know a lot more than I do. Also, I wondered if it felt like unnecessarily "piling on."

However, the amended complaint sues bloggers for criticizing a publicly filed lawsuit, demanding that their posts be taken down, and claiming that the posts were written "to cause Rakofsky to suffer sever and debilitating emotional injury and anguish, thereby making [the defendants] actors in the intentional infliction of emotional distress on Rakofsky."

In America. A lawyer (represented by another lawyer) sued other lawyers for writing articles criticizing the merits of a lawsuit?

Well as the poet and theologian Martin Niemoller might have written, "First they came for the criminal law bloggers, and I didn't speak out because I was not a criminal law blogger."

Or as an equally important 20th century philosopher said, "That's all I can stands, and I can't stand no more!"

Again, I'm only a probate and tax attorney and not a civil, first amendment, or criminal attorney. But I did go to law school and I did pass the bar. I'm also an American. Rakofsky can't keep adding as a defendant everyone who criticizes his ridiculous behavior and his frivolous lawsuit.

Otherwise, he actually will sue the entire internet.

But let me take a different tack.

Joey, bubbeleh. I know you're angry. I know you think that your career and your life are over.

They're not.

F. Scott Fitzgerald was wrong when he wrote that "there are no second acts in American Lives."

You certainly could have recovered after the initial criminal case with a sincere showing of contrition and a desire to learn and become a good attorney. Had you not filed the lawsuit, the criminal defense attorneys who most harshly criticized you are the same ones who would have been willing to offer you free advice and guidance on how to grow into the profession.

It's still not too late for you. You can fix this. Find an adult, a real adult who will give you the advice that you need to hear. Drop this ridiculous lawsuit. Disappear. Go work on a kibbutz for a year or two. Come back a new man.

Stop being a schmendrick.

Start being a mensch. 
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