Archive for the ‘First Amendment’ Category

Lawyering Under the Lights (And Thoughts on the Rakofsky Dismissal)


OK, the Rakofsky v. Internet decision is in, and the motions to dismiss were all granted. The motion for sanctions was denied. (Your familiarity with the facts will be assumed.) You can read a variety of opinions on the subject here: Simple JusticeTechdirt, Popehat, Lawyernomics, Philly Law Blog, My Shingle.

But I’m not writing to rehash the opinion (Here, if you want to read it). I’m writing instead because of the bizarre scenario that occurred where I wore three different hats. And to give my thoughts on standing my ground in this fight.

First I was a blogger that mentioned Rakofsky in a post about attorney advertising.

Then I was a defamation defendant telling him to go shit in a hat after he sued me for stating my opinion, along with a gazillion others.

And then I was local counsel for 35 defendants (16 authors). Almost all of them were highly opinionated attorneys, had law blogs, and knew perfectly well how to stand on their own two feet in the well of the courtroom. (Client list) There wasn’t a flinching fawn anywhere in this group.

I took the gig as local counsel because I assumed it would be easy. The case clearly had no merit, would need a simple motion to dismiss, and  **poof** it would be gone. I figured six months, tops, and First Amendment guru Marc Randazza was going to do all the heavy lifting as our pro hac vice counsel while I worried about local procedure on my home court.

Now lawyers working either on contingency or for a flat fee make those kinds of calls all the time, balancing the time they think they will invest in a matter against the value gained. But this took two years, confounding all expectations, and required a lot of extra time with some pretty sharp minds looking on. While I’ve had high profile cases before — including one that hit 60 Minutes some years back — I didn’t have blogging lawyers as clients and a profusion of popcorn eating armchair pundits looking on and reading the filings.

Most readers only know me through this blog, not by watching the actual practice of law. I have a separate website for my law practice (which I still hate), and I do that on purpose.  The contents over here are opinion and news, and the contents over there are a digital brochure for lawyering. I rarely link to the website, or even mention it, and it’s seldom visited relative to this blog’s traffic. People here don’t watch me practice law.

But everything was now different as I became a crazy cocktail of blogger, defendant and lawyer — shaken (not stirred) together. And folks were watching.

Given that blogger/defendant/lawyer brew , it puts me in a good position to shed some light on why this took two years, as some have criticized New York’s judiciary system for the delay. This is the short version of the procedural morass — including plaintiffs’ counsel quitting and our first judge retiring:

I know that this seems like a lot, but it really is the short version.  It should have been simple, but it wasn’t. That sucks for those involved, but really, what were the odds that the plaintiffs’ lawyer would quit and then the judge would retire? Those were both biggies.

Is it possible the case could go on further with an appeal? I suppose it is, but as pointed out elsewhere, the judge was quite charitable toward Rakofsky by not sanctioning him, perhaps believing he’d been punished enough with the scathing online commentary, albeit much of it brought on by his own conduct.

But appellate judges might not be as dismissive as the trial court was of his having held himself out as a New York lawyer and putting a New York law office on his letterhead when he’s not admitted here. Leaving aside the cost of an appeal, there is much to lose by having appellate judges look at the conduct that many were already criticizing.

I gave up long ago trying to make predictions about this case, so I won’t make any here about whether it’s truly over. In fact, I try not to make predictions on any of my cases since the vagaries of life and litigation tend to upset the prediction applecart.

But assuming it is over, since that is what logic tells me, we move to the ultimate question: Was it worth being part of the defense team?

first-amendment-719591The answer has to be yes. The clients I have are like-minded individuals that cherish the First Amendment and are willing to fight for it. They could have easily ponied up the $5,000 that Rakofsky wanted early on to make the case go away, but they elected to fight. These are the types of people you want in your foxhole.

The message should go out loud and clear to all that consider bringing a frivolous suit against us. We make our living within the justice system, many of us by battling in the courtroom well. We have a pretty good grasp of how the courts work and the bounds of our freedom to speak and to write that are immortalized in the Bill of Rights.

We think it’s important to shine a light on ethical issues that we see with respect to attorney conduct that we believe crosses red lines, in the grand hope that such light becomes a disinfectant for the legal community. We do not want to see the cops’ Blue Code of Silence or the medical community’s White Coat of Silence darken our profession.

We will not cower or wilt under fear of empty threats or vacuous suits. Those that attempt such intimidation will find hardened and opinionated citizens who don’t care to relinquish our rights to speak freely. We know how to stand on the ramparts to fight for those rights, and we know how to win.  Representing such resolute individuals, despite the procedural shambles that ensued, has been my honor.

Was it worth doing? You’re damn right it was.

Holding My Tongue

Last weekend a story lit up around the legal blogosphere about a troublemaker named Carlos Miller.

Miller, it seems, wanted to take pictures and video on the Miami-Dade Metrorail. The security guards — a private company called 50 State Security — told him to stop, because it was illegal. He said no, because he knew it was perfectly legal. He got roughed up and arrested for his efforts.

He could have said no, of course, and gone on his merry way. That is, in fact, what 99% of the population would do. It seems like such a small thing to do; just turn off the camera.

But Miller isn’t part of the 99%. He’s part of the 1%. He has a website called Photography Is Not A Crime, where he documented his altercation. You can see the video of what happened. With a website by that name, it doesn’t take a genius to quickly figure out that Miller has an agenda. He risked being beaten up — or worse if things escalated as such things tend to do — for his agenda.

The story buzzed quickly around the blogosphere, so I won’t rehash all the details. You can read them from , GreenfieldPhilly Law Blog and many more.

But I held my tongue, or in the case, backed slowly away from the keyboard. The story broke January 21st, and I was picking a jury in a medical malpractice case the next day in an upstate (read: conservative) county.

While it wouldn’t take me long to type up a post on the subject, what would happen if a juror (impermissibly) Googled me and saw the post? What if I had a different opinion about troublemaker Carlos Miller than the juror?

I have the burden of proof at trial and need five out of six jurors to agree with my presentation to return a favorable verdict. And that post would be the very first thing that a juror would see.

The criminal defense bar gets the opportunity to be, well, a bit more colorful if they want. They only need one juror on their side, giving them more leeway.

Two short points: First, clients come first. They always have, they always will. Any practicing lawyer who blogs, and has the burden of proof at trial, has to pick stories very carefully.

Second, about Miller. While it might sound trite for me to quote a commercial when discussing him, I couldn’t get it out of my mind on the long drive back home. Nor could I dismiss the images used in that commercial, of Einstein, King, Ali, Earhart and so many more. The commercial is iconic:

Here’s to the crazy ones. The misfits. The rebels. The troublemakers. The round pegs in the square holes. The ones who see things differently. They’re not fond of rules. And they have no respect for the status quo. You can quote them, disagree with them, glorify or vilify them. But the only thing you can’t do is ignore them. Because they change things. They push the human race forward. While some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world, are the ones who do.

You can read Marc Randazza’s take on the case for the reason’s why Carlos Miller is a troublemaker to celebrate.

Blogging and Guns Drawn and Memorial Day

A terrifying story over at Patterico’s Pontifications, written by conservative blogger and Los Angeles prosecutor Patrick Frey. This is a very short snippet:

At 12:35 a.m. on July 1, 2011, sheriff’s deputies pounded on my front door and rang my doorbell. They shouted for me to open the door and come out with my hands up.

When I opened the door, deputies pointed guns at me and ordered me to put my hands in the air. I had a cell phone in my hand. Fortunately, they did not mistake it for a gun.

They ordered me to turn around and put my hands behind my back. They handcuffed me. They shouted questions at me: IS THERE ANYONE ELSE IN THE HOUSE? and WHERE ARE THEY? and ARE THEY ALIVE?

Considering that the issue of free speech is how the cops arrived at his door, the story is extraordinary. Why they arrived at his door is the subject of his piece.

On the same subject, Popehat has a piece on why free speech is important, not just for those you agree with, but for those you don’t.

And Scott Greenfield has more on why it’s so important to pass the word around regarding these issues.

This is Memorial Day weekend. People fought and died for this country based upon its core principles. One of those principles is free speech. It’s something to think about when you see those flags in your neighborhood.

Banning Anonymous Speech: Reality Mimics April Fool’s Gag

Really, who’d a thunk it? On April 1st I went live with a gag about Joe Lieberman proposing to ban anonymous speech on the Internet. I used a new blog: McIntyre v. Ohio to run it anonymously. Lots of fun was had, and I did a deconstruction of the hoax the day after, but no journalists were actually taken in.

But were real life politicians actually suckered into it? Or did they come up with this idea on his own?

Two bills  now pending in the New York State Senate and Assembly propose to ban anonymous speech. Yes, this would be in flagrant disregard of prior constitutional case law on the First Amendment. And that primary case is McIntyre v. Ohio for which my “other blog” is named.

The legislation — conjured due to concerns over cyber-bullying — would require anyone with a website:

“upon request remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.” By “web site,” the bill means just what it seems to: Any New York-based website, including “social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.”

The bills will go nowhere, of course, because the First Amendment allows anonymous speech. For a good read on the long and deep history of such speech in the United States, read the concurring opinion of Justice Clarence Thomas in McIntyre.

For more on the subject:

New York to Publius: You’re Done Bully Boy (Simple Justice)

The New York Bill that Would Ban Anonymous Online Speech (Time)

Laughable Online Censorship Attempt Won’t Last a New York Minute (Huffington Post)

As for those that were in on my April Fool’s gag, they deserve once again their due credit for assisting:

Joe Lieberman v. the Internet: It’s not over. (Adam B. @ Daily Kos)

End of Section 230 Protection for Bloggers? (PattericoPatterico’s Pontifications)

Thanks To Senator Lieberman, You Guys Are Going To Get Me Sued (KenPopehat)

Dear Commenters: We Can’t Protect You Anymore (MystalAbove the Law)

Anti-terrorism law threatens First amendment? (Frank Point of Law)

Section 230 Amendment strips websites of immunity from anonymous commenters(RandazzaLegal Satyricon)

A Free Speech Disaster — The End of Anonymous Commenting? (CubanThe Cuban Revolution)

Lieberman to Internet: You’re Fungus (Greenfield Simple Justice)

Anonymous Commenting Legislation By Joe Lieberman? (TannebaumMy Law License)

Blind-Squirrel Lieberman Finds Acorn (BennettDefending People)

A One-Two-Punch Against Free Speech (DraughnWindy Pundit)

The Community You Create (Zubon Kill Ten Rats)

First Amendment Malpractice (Barovick at NY Medical Malpractice Law)

Will Free Speech in America Meet Its Match In Lieberman? (WiseWise Law Blog)


Rakofsky Moves to Amend His Defamation Case (Updated x2)

Joseph Rakofsky, as seen on a copy of his website, which has since been taken down.

Joseph Rakofsky, who last year sued the Internet for defamation and then amended his suit to add more parties, is now asking the court for permission to amend his suit again.

The proposed Second Amended Complaint weighs in at a staggering 268 pages, with 1,223  separately numbered paragraphs. No, I haven’t read it, but I see that it does contain a brand new tort he calls Internet mobbing, which I understand is a claim that prohibits use of the Internet for criticism and revokes the First Amendment. Feel free to wander amidst the legalese and let me know what these papers actually claim.

I will get to it, of course, since I am one of the defendants and also local counsel to 35 defendants. Marc Randazza is lead counsel for our group.

The motion to amend is made because, in New York, you only get to amend a complaint once as of right, which right he already used up just days after starting the suit. After that judicial permission is needed, or else a plaintiff could be constantly moving the goal posts making the case impossible to defend to conclusion.

Mr. Rakofsky also asks for additional relief in the form of amending the caption to correct the name of the lead defendant, the Washington Post, which had originally reported the story of Mr. Rakofsky’s troubles defending a murder trial in Washington D.C. and the judge’s highly uncharitable comments about his representation. The same judge added more just weeks ago when Rakofsky’s former client was sentenced to 10 years after a plea, and called the defense “clueless” and “motivated by self-interest,” according to Jamison Koehler who practices in that neck of the woods.

Other requested relief is to delete eight defendants from the caption because they settled with Rakofsky, including St. Thomas School of Law. And he seeks a default judgment against seven defendants who didn’t bother to answer the complaint at all, presumably because they are out of state and not subject to jurisdiction in New York.

Previously he had moved to add Yahoo! Google and Tech Dirt, but that relief is not mentioned in the Notice of Motion. The current attempt to amend the amended complaint is actually shorter this time than last.

There are numerous motions pending to dismiss. These papers do not address any of those motions.


Cross-Motion and Affidavits (total, three pages)

2nd Amend Complaint pt 1 (part 1, 118 pages)

2nd Amend Complaint pt 2 (part 2, 151 pages)

Update (6/8/12):

My Affidavit in Opposition: ET-OppAffFinal

Our Memo of Law in Opposition: Rakofsky Opp to SAC -Final

Update (6/26/12):

Rakofsky’s Reply Memo of Law:ReplyOnMotionToAmend


Section 230 April Fool’s Hoax – A Deconstruction

Is it April 2nd already?

Welcome to April 2nd, and that means deconstructing yesterday’s web hoax that dealt with a phony bill by Senator Joe Lieberman that would effectively ban anonymous commentary on the Internet. The bill does this by stripping away the immunity that content providers currently enjoy from Section 230 of the Communications Decency Act. That would expose bloggers, forum owners and a panoply of others to potential liability. It played out on a dozen blogs that were all in on the joke.

How do I know it was just a joke? Do you really have to ask? If you’re just checking in to this blog for the first time you will find out by looking at this posting of mine from yesterday that this is the fifth year in a row I’ve done one of these. But since I’m now known (in the legal blogosphere) for running an annual gag, I created a new blog in February just for this purpose, to mask my identity: McIntyre v. Ohio. Prior to yesterday, the readership of that blog had been six Bulgarian spam bots and that guy Ken from Popehat. Thanks, Ken.

The new blog is dedicated to anonymous free speech, and named for the leading Supreme Court case on the subject. The idea for it popped into my brain late last year when Senator Lieberman asked Twitter to kill the Taliban feed. Obviously, the government can’t just shoot down someone’s speech rights, no matter how vile, because of that whole First Amendment thingie. This country was built on the marketplace of ideas prevailing, so the answer to political speech with which we disagree has always been “more speech.”

So the April Fool’s idea was that Lieberman would circumvent the First Amendment issue by simply stripping away the immunity that web hosts enjoy, thereby scaring the bejesus out of everyone in the private sector that is in any way involved with a web forum, and forcing people to kill controversial speech out of fear of litigation. It was called the Accountability for Free Discussion Act, or AFD, which is also the acronym for yesterday’s fun fest.

This was the premise: If a whole bunch of bloggers started talking about a major bill that would completely alter the Internet in this country, would any major media company publish the story despite it being unconfirmed and it being revealed on April Fool’s Day?  The great problem, news-wise, of the digital age is the need to get to a story first, or at least fast.  All too often that means taking shortcuts when first is defined in hours, or minutes. The old journalism adage is, if your mother tells  you she loves you, check it out. But that sometimes falls by the wayside.

Lieberman was a perfect (unwitting) straight man for this because, as a pragmatic centrist, he is disliked by passionate ideologues on both sides of the political aisle. That means that there are a lot people who want a negative story about him to be true. People like seeing stories that confirm their own feelings and they are often willing to accept such stories without additional confirmation. (Political commercials feed on this to energize political bases.) One sample comment from someone suspending belief in the hope it was true came out of Daily Kos:

You know, if it was anyone else I’d think it was an April Fool’s joke.
But Lieberman is such a weasel, it has to be true.

There were other reasons for Lieberman as well. The Senator is retiring, making him a good target since there is no political fallout if constituents should actually believe it but don’t realize it was a prank. He is also the chairman of the committee on Homeland Security and can voice such a bill in an anti-terrorism context, with accountability being used as a means to disrupt anonymous communications in various forums. But perhaps the best reason to use Lieberman is that he wore a baseball cap to President Obama’s inauguration. Really Senator, what the hell were you thinking?

The major complicating factor in all this was that April Fool’s Day  fell on a Sunday. Sunday sucks for news and blogs but  we can’t change the calendar.

We tried to use that ugly fact to our best advantage. I figured that if we struck at dinnertime, under the assumption that all of the other April Fool’s gags had played themselves out by that point, we might have a better shot. Also, it would be far less likely for anyone from Lieberman’s office to quickly put out a denial. (If he did put out a denial, we were going to claim victory in that the bill had been withdrawn.) Essentially, the only people still involved with April Fool’s by this time were two groups: kids those telling the same joke for the 30th time because their parents laughed the first time to humor the child, and other kids trying to pawn off the last of the bug-flavored jelly beans.

So we slipped the story out at dinnertime on that  little, bitty blog where the plan was for it to be promptly “found” by a “real” blog, Daily Kos, and then quickly spread. Most of the co-conspirator bloggers that you see below had actually written their bits a few days in advance. We only had a couple hours to create a viral political story from whole cloth. Did we get major media? No. And kudos to those that saw it but didn’t bite.

But were other folks taken in? You bet. And  not just anyone, but the super cynical types that read political blogs and don’t generally believe much of anything — unless it confirms their worst perceptions about others.  Just read the comments at Patterico (politically right) and Daily Kos (politically left) if you don’t believe me.

One big source of inbound traffic was a popular forum called Hacker News. I felt bad about that because, well, those folks are a lot smarter than us and know how to break our digital windows. (Please. Don’t. Keep reading.)

But before any of you get angry at me or my co-conspirators listed below, remember this: Each of the authors participated because we feel strongly about protecting the First Amendment. (I’ve twice defended defamation claims, one in the past and one currently.) So while you may have been fooled for a few hours, or even angered, you should know that those who did the fooling are your teammates in vigilance against those that wish to encroach on our rights to speak freely.  Most of the jokesters are lawyers. We get it.

There are civil libertarians on both sides of the aisle:

Joe Lieberman v. the Internet: It’s not over. (Adam B. @ Daily Kos)

End of Section 230 Protection for Bloggers? (Patterico @ Patterico’s Pontifications)

Thanks To Senator Lieberman, You Guys Are Going To Get Me Sued (KenPopehat)

Dear Commenters: We Can’t Protect You Anymore (MystalAbove the Law)

Anti-terrorism law threatens First amendment? (Frank Point of Law)

Section 230 Amendment strips websites of immunity from anonymous commenters (Randazza @ Legal Satyricon)

A Free Speech Disaster — The End of Anonymous Commenting? (Cuban @ The Cuban Revolution)

Lieberman to Internet: You’re Fungus (Greenfield @ Simple Justice)

Anonymous Commenting Legislation By Joe Lieberman? (Tannebaum @ My Law License)

Blind-Squirrel Lieberman Finds Acorn (Bennett @ Defending People)

A One-Two-Punch Against Free Speech (Draughn @ Windy Pundit)

The Community You Create (Zubon @ Kill Ten Rats)

First Amendment Malpractice (Barovick at NY Medical Malpractice Law)

Will Free Speech in America Meet Its Match In Lieberman? (Wise @ Wise Law Blog)

There are some who may wonder why I go to all the bother of doing this each year. You will find the answer to that question in the same place where I explained why I not only  dressed up in a turkey suit at Thanksgiving time, but actually published the pictures.

Finally, I’ve now run gags regarding the Supreme Court, the White House, and now Congress. I’m officially retired from the April Fool’s dodge. For real. My wife told me if I do this again she will kill me. Then divorce me.

Besides, when you think about it, what else is there? I mean, I know the U.N. is just down the street from my office, but how could that possibly be any fun?

No clients were injured in the creation, publication and execution of this hoax.

Rakofsky Motion #10: Washington City Paper Moves to Dismiss

The Washington City Paper, a freebie delivered around the streets of our nation’s capitol, is also a defendant in the Joseph Rakofsky defamation case. They published this article on April 4th about the mistrial, written by Rend Smith.

The paper is represented by the same attorneys as Jeanne O’Halleran, that being James Rosenfeld and Samuel Bayard of Davis Wright Tremaine.

Note that I do not publish all documents, since so many are redundant. There is no need to publish, for example, an attorney’s affirmation that merely attaches a copy of the Amended Complaint and other previously published documents in every one of these posts. Readers can use the Joseph Rakofsky category link to find documents that they might not see here.

Also, please note that since I became local counsel to many of the defendants, I’ve elected not to add substantive commentary. But the papers are made available here due to the widespread interest in the case.


Rend Smith Affidavit

Amy Austin Affidavit

Talmadge Bailey Affidavit

Memo of Law

Rakofsky Motion #9: O’Halleran Motion to Dismiss (Updated)

Yesterday we saw motion #8, the Washington Post‘s motion to dismiss the Joseph Rakofsky defamation case. Now today we see #9, regarding defendant Jeanne O’Halleran, a Georgia attorney, who was swept into this mess because she posted about this story on a local Georgia forum. She is represented by James Rosenfeld and Samuel Bayard of Davis Wright Tremaine.

Also, note that there are two new exhibits that have not been filed before:  Exhibit B is the court proceedings from the day before the mistrial when defendant Deaner asks for a new lawyer. And Exhibit D, which is the motion of investigator Adrian Bean that includes commentary the “trick” email that the Washington Post subsequently published.


O’Halleran Affidavit

Memo of Law

Exh B – March 31 Proceedings

Exh D – InvesigatorMotion

Update 6/25/12: O’Halleran Reply Memo: O’Halleran Reply Memo

Rakofsky Motion #8: Washington Post Moves to Dismiss (Updated)

The next motion to dismiss in Joseph Rakofsky’s defamation case against 81 defendants has arrived. As noted earlier, I am one of the defendants (history of suit), and I subsequently became local counsel for a total of 35 defendants (why I won’t post much on the subject now).

The Washington Post is represented by Kevin Baine and  Chetan Patil of Williams & Connolly. In addition to the Post, they represent  Post writer Keith Alexander, who authored the two articles that drew so much attention from the legal blogosphere, and Post researcher Jennifer Jenkins.

The moving papers are here:WashingtonPost-MotionDismiss

This is motion #8. A round-up of the other seven motions are here.

Updated 5/24/12Rakofsky Opposition Memo Of Law

Joseph Rakofsky — I Have An Answer For You

Joseph Rakofsky, as seen on a copy of his website, recently taken down.

I’ve been sued. I’m 51 years old and this is a first for me, both personally and professionally.

And it flows from a post I wrote last month about the depths to which some attorneys will sink in their marketing, that also happened to mention that Joseph Rakofsky was incompetent as a lawyer. Also, that he had an ethical issue regarding an email he sent to an investigator asking him to “trick” a witness. He sued me for defamation.

First the background on how the suit came to be, in case you haven’t already read one of the gazillion other stories about it; I’d only dealt with it briefly before. I’ll also discuss how I’ve dealt with four past legal threats I’ve received. And finally, I’ll tell give you my response to being sued.

Pull up a chair. The story is good. Unless, of course, you are Rakofsky. Or his lawyer, Richard Borzouye.

Background of the murder trial and lawsuit

The basis of  my initial comments was an article in the Washington Post regarding a criminal trial Rakofsky defended. And the Post had, in turn, quoted the presiding judge among its sources.  The Post told the tale of the 33-year-old Rakofsky, a 2009 law school graduate admitted to practice in New Jersey, taking on his first-ever trial. A murder defense. In Washington D.C. Where he’s not even admitted to practice. (see: D.C. Superior Court judge declares mistrial over attorney’s competence in murder case)

So Rakofsky hired local counsel to help him, and get him admitted to practice in D.C. for the purpose of this one case. Nothing wrong with that part if, of course, he could properly handle such a case. Which the presiding judge said he couldn’t, with the Post reporting that the judge was “astonished” at Rakofsky’s performance and his “not having a good grasp of legal procedures.” Also, that his performance in the trial was “below what any reasonable person would expect in a murder trial.” And that ” there was not a good grasp of legal procedures of what was, and was not, allowed to be admitted in trial, to the detriment of [the defendant].”

And the Post also reported that Rakofsky’s own co-counsel, that he hired to help him, said, “He was the attorney of record. I would offer what I thought was the best advice, and he wouldn’t accept it.”

And then there was the part about trying to “trick” a witness. According to the Post:

The filing included an e-mail that the investigator said was from Rakofsky, saying: “Thank you for your help. Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting.” The e-mail came from Rakofsky’s e-mail account, which is registered to Rakofsky Law Firm in Freehold, N.J.

A mistrial followed, the story was published, and the legal blogosphere lit up with commentary, much of which dealt with his website and marketing where he pretended to have vast experience, when in reality he had little.  Much of that experience that he boasted about, it seems, came from being an intern, not a lawyer. Bloggers wrote about his incompetence and ethics problem, much of it in gory detail with full orchestration and 5-part harmony.

As a lawyer, he was still in his puppyhood, though you wouldn’t know if from the experience he described on his website.**  On the Internet, nobody knows you’re a dog.

Still with me here? Because this is where it gets really bizarre.

Did Rakofsky go to lick his wounds and repair the damage he had done to his own reputation? No, he did not. Did he send emails or make calls to those bloggers he believed got the story wrong in order to give his version of the events? No, he did not.

Instead, he sued. Everybody.  This included the Washington Post, The American Bar Association, and Thomson Reuters. Scott Greenfield (one of my co-defendants) instantly dubbed the suit Rakofsky v. Internet. The Complaint is here. Mark Bennett (another co-defendant) has a compendium of posts on the subject, so I won’t give much more background.

Then, after getting ripped to shreds based on the frivolousness of the suit –after all, the bloggers he had sued were relying on a Post story quoting a judge —  he amended his Complaint to sue even more. When you only own a shovel, I suppose, you only know how to dig.

With the story in the news, one of the jurors appeared to reinforce what everyone was saying. Except worse. He wrote:

It was obvious from the opening statements that Mr Rakofsky was way out of his league and poorly trained for a proper court defense. Whatever momentary empathy any of us on the jury may have felt for Mr Rakofsky’s absolute ineptitude, were quickly absolved by our knowledge that a young man’s entire life was at stake. The absolute amateurish antics displayed by Mr Rakofsky were repulsive and oddly narcissistic. He had very little command of the law, and now hearing that Mr Deaner’s family actually hired him is truly upsetting. Most of us assumed that this was a court ordered public defender that may just have been too young and overwhelmed by a huge docket of cases to put together a proper defence. (More ugly comments from the juror about Rakofsky here.)

And so, buried deep on page 53 (paragraph 165 of the original Complaint and paragraph 172 of the Amended version if you are hunting this down), Rakofsky makes a claim against me, for writing thusly:

Ethics also comes into play with deception, as evidenced by one Joseph Rakofsky, a New York lawyer with scant experience, but whose website sung his praises in oh so many ways. Then he got a real client. Defending a murder case. Which of course, he was utterly incompetent to do…

(Where I will be in all the future amended Complaints is, of course, a mystery, as people continue to write and ridicule,  and he will presumably spend all of his waking hours amending and re-amending until he gets carpal tunnel syndrome.)

Rakofsky claims in the part of the suit pertaining to me, that “”Rakofsky was never declared ‘incompetent’,” as I had written. But he is wrong. He was declared incompetent. By me. And, of course, by many, many others. (Post headline read: D.C. Superior Court judge declares mistrial over attorney’s competence in murder case.)

Having given the basic outline of the story, I now turn to the part where I give my opinions. So let me go on to say that: In addition to being incompetent, I also think, based on the comments of the presiding judge, his co-counsel and the juror that spoke up, that he is unskillful, incapable, inept, unqualified, untrained, unprofessional, and clumsy. This is in addition to being a bumbler, blockhead, dolt, dingbat and chucklehead for having brought this suit, guaranteed to rain much unhappiness unto his name. I’ve got a thesaurus and I’m not afraid to use it.

But a Complaint in a lawsuit demands an Answer. That is a document that we lawyers file in the big white building with the fancy columns downtown. As it happens, that’s my home turf. I tried my first case there back around 1986, and I last appeared there this morning.

But hey, I got a blog too, so why not give a little explanation for why I will Answer the way I will?

How I’ve handled past legal threats:

I’ve been threatened with legal actions at least four times that I can remember. The first came from Avis, where one of their associate general counsel’s told me to cease and desist using the Avis logo to decorate my blog for a post regarding immunity for rental car companies. I had great fun with that, engaged the intellectual property bloggers to crowdsource legal opinions, and then told Avis to go stuff it.

The second one also came from a General Counsel, also from a large  company displeased at my using one of their  images to decorate a post about the company. She called me. I suggested she send a  letter to me setting forth her position why it wasn’t “fair use.” She never sent the letter. Smart move.

A third one came from someone unhappy that I linked to her. Go figure.  My spam folder is filled with solicitations asking for links. While the post was a simple nuts-and-bolts practice tip about intake questionnaires – and possibly the most boring post I ever put up on my site, so please forgive me for even linking to it —  I nevertheless told her also that I wouldn’t take it down. Then she changed the text of the post I had linked to, making the link irrelevant, and I had to kill the link. But the post stayed up in all its awfulness.

A fourth dealt with the issue of insurance fraud, and a company that provides so-called “independent” doctors for defense medical exams, except that a doctor on the witness stand was caught with written instructions directing him to omit opinions from the “independent” report if they were favorable to the plaintiff. I heard about it through the grapevine and put on my journalist hat to see if I could find out who did this slimy thing. I tracked the company website to a doctor’s home address and published it. Then I got a call from a screaming lawyer (the doctor’s son) because I had put his father’s home address on the web, and moreover he told me, his father had nothing to do with the company. I hung up on him as he was threatening to haul me in front of a judge. Then he called back, having cooled his heels a bit, and ‘fessed up  that he was actually the owner of the company with the slimy instruction letter. So, because I now had additional (and much better) information, that being his admission to being the company owner, I edited the post to bring it up to date (and explained why).

My Answer to Rakofsky:

Now we are here. An actual lawsuit against me. You probably have the idea by now that I don’t suffer fools too gladly. And that posture doesn’t change today.

One of the demands Rakofsky made is that the defendants not mention his name. Or use his picture. Which is truly bizarre. He seems desperate to scrub the Internet of his follies.

I am tempted to write, in response to the suit, “Go shit in a hat and pull it down over your ears.” But that doesn’t sound very lawyerly. So I’ll say it in Latin. Vado shit in a hat quod traho is down super vestri ears.*

OK, maybe I used a translating website for that. You don’t really think I write Latin, do you? I suppose, for future reference, we can just call it the GSIAH defense. Or VSIAH if you like the pseudo-Latin that came out of the translator and you want to wow your friends with your knowledge of the Internet’s hottest new acronym.

Yeah, I digressed. But that was worth it, no?

What was Rakofsky thinking? That a bunch of lawyers that make their living in the well of the courtroom, accustomed to walking a high-wire without a net as we cross-examine hostile witnesses, would somehow cower in fear at an utterly frivolous lawsuit? Did he think that those of us that write blogs, for all to see, might not somehow have a basic grasp of the First Amendment? Didn’t he know, well before he even went to law school, that people have a right to set forth their opinions? How could he survive law school and pass a bar exam without knowing constitutional fundamentals? Perhaps the better question, why wasn’t he thinking of what would happen in response to such a suit? Was he a spoiled child that got everything he wanted simply by throwing a tantrum?

And those of us that are practicing lawyers are the small fries, compared with our co-defendants Washington Post, American Bar Association and Thompson Reuters. Like they are going to roll over and  pull down their articles? Good grief.

Rakofsky’s choices at this point seem limited. But certainly, the first thing he ought to do is put away the damn shovel as he is burying himself with it.

Yeah, there’s more to come.

*Update: I’ve been told by Luigi de Guzman that the proper translation, or as proper as possible, is vade et caca in pilleum et ipse traheatur super aures tuos (go shit in a [knit] hat & let that same hat itself be pulled over your ears).

Update #2: This post has generated some unusually heavy traffic, so here is my official Welcome to all you new readers getting ready to head out the door…

**Addendum (5/26/11) – While Rakofsky apparently took down most of his websites/marketing as of this writing, at least one of them has been preserved  at this link as an example of misleading attorney marketing for a lawyer just starting out. I have used a photo from that source.  The picture serves as a contrast to the older, gray haired gentlemen — who apparently have no relation to Rakofsky’s  firm —  that also were used on the Rakofsky site.

Update #3 (5/31/11): The Rakofsky Defamation Case (And Why I Won’t Be Posting Much)

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