Archive for the ‘Joseph Rakofsky’ Category

NJ Files Ethics Complaint Against Rakofsky (And Why It’s Important to You)

Internet_dogThe New Jersey Office of Attorney Ethics has filed a Complaint for misconduct against Joseph Rakofsky. It’s dated December 16, 2013, but hasn’t been previously reported.

There are two main issues in the Complaint. The first deals with the way he described his prior legal experience in web site advertisements. The second with the way he sought business in states where he isn’t admitted to practice law.

For the reasons below, I think this is a pretty important case to follow that affects all lawyers, regardless of whether we advertise or not.

But first, a very fast primer for those new to the Rakofsky saga: He was a recently admitted New Jersey attorney advertising his services in New York and other states, claiming vast experience. He then went down to Washington D.C. to try his very first case — a murder trial.

He didn’t do well, with the judge declaring a mistrial part way through citing, among other things, his lack of competence.

The Washington Post picked up the story of the trial, and then bloggers picked up the WashPo story and added more, regarding (among other things) the subject of his advertising and its relationship to his actual legal experience. Then he committed career suicide by suing a boatload of bloggers for defamation, including me, in a case quickly dubbed by Scott Greenfield as Rakofsky v. The Internet.

He then amended the suit to add those that skewered him for starting the suit. The case was finally dismissed last year.

Primer over. Read those links if you want more (or some of the 101 links here), as it’s time to turn to the nuts and bolts of the ethics complaint and his response. But I really only want to touch on one issue, and will leave the rest for others, as I am local counsel to many of the people sued. What you get here today, therefore, is mostly just a few facts and only limited opinions.

The first of the two subjects the ethics complaint touches on is the way he advertised himself, among many other claims, as having:

worked on cases involving Murder, Embezzlement, Tax Evasion, Civil RICO, Securities Fraud, Bank Fraud, Insurance Fraud, Wire Fraud, Conspiracy, Money Laundering, Drug Trafficking, Grand Larceny, Identity Theft, Counterfeit Credit Card Enterprise and Aggravated Harassment.

And the problem identified by the Office of Attorney Ethics is that he had barely any experience at all and inflated the importance of brief stints at a few firms, some no more than a few months long. The Complaint maintains that this was misleading advertising. In his answer to the Complaint, Rakofsky states that one of the mitigating circumstances for his conduct was that he was “young and inexperienced.”

The second issue had to do with his advertising his services in Washington D.C. and New York (and Connecticut, though that isn’t cited in the Complaint), even though he’s not admitted in those states. That is a big no-no. His defense, culled from his answer, is that he was a partner of some type with Sherlock Grigsby in Washington D.C., who was local counsel to the murder trial, and with Richard Borzouye in New York, who was local counsel here as Rakofsky sought pro hac vice admissions in several matters.

The exact nature of those relationships is described by Rakofsky’s counsel in the answer as “partners in that they shared expenses and referrals of cases providing access to other jurisdictions.” This, he seems to argue, lets him advertise that he has an office for the practice of law in other states. Rakofsky’s counsel asserts, in fact, that “This was intentionally his business model.”

Now there is a lot of meat and potatoes for others to analyze within those documents — competence, partnerships, advertising, solicitation, unlicensed practice of law and more — but this is the part that I wanted to discuss: When these twin issues of misleading advertising and practicing law outside his own jurisdiction were brought to the attention of the New York judge that heard the motions to dismiss in our defamation case, he rejected it all. He called it, quite charitably, mere “puffery” and moved on. (See Transcript 4.8.13, at page 38-40.)

Other judges might have been livid and lowered the boom on him, not only sanctioning him but referring him to the District Attorney for potential prosecution regarding the practice of law without a license. I think most people believe he got off very easy.

There will be a hearing in New Jersey at some point in the future on the ethics charges, though it’s not yet scheduled. My understanding is that such hearings are open to the public. The Complaint and answer in this matter are likewise public and I’ve provided them at the bottom of this post.

New Jersey is, therefore, very much unlike New York, where most disciplinary matters are kept hush-hush. Attorney Dominic Barbara, for example, infamously racked up nine Letters of Caution, nine Admonitions, and two Advisements without the public knowing, before finally being suspended. But it was only then, at the time of suspension, that all those other sanctions came to light.

New York and New Jersey couldn’t be more different, it appears, in how they handle ethics complaints.

The issue of lawyers exaggerating their experience in a misleading way has percolated among many law bloggers, often summed up by the now-ancient (1993) New Yorker cartoon that I used as art work above, “On the internet, nobody knows you’re a dog.”

The instances of ethics committees trying to hold lawyers accountable for internet advertising are few and far between, and it’s clear that the attitudes of ethics panels will differ between states. While I obviously have a personal interest at stake, I can’t help but think that an objective viewer will find some pretty important lessons that emerge when the smoke has cleared, and possibly new case law.

The matter deserves to be watched — not to kick Rakofsky again — but to see how a state ethics committee will handle issues of misleading advertising on the internet. While the standard of what constitutes misleading is no different than a dead-tree Yellow Pages ad, the reality is that vastly more information can be put up on a website. And that means greater opportunity to “massage” a biography, and greater ease for lawyers to advertise their existence in jurisdictions where they aren’t admitted to practice.

The ultimate decision in this ethics case will matter to to us all. Because even if you don’t advertise, our collective reputation as attorneys is affected by those that do.

The Office of Attorney Ethics Complaint is here:ComplaintAndExhibits (December 16, 2013)

Rakofsky’s Answer is here: Answer Rakofsky (January 27, 2014)

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

spotlight_r

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.

Rakofsky Case – The Sanctions Motions (Updated)

This is an update on the matter of Rakofsky v. Internet. Your familiarity with the facts will be assumed, but if you need a primer, you can read through the various posts tagged Rakofsky. There are 13 motions to dismiss that are pending. Or you can use the Google.

As previously noted, I am both a defendant and local counsel. Since I am counsel, I won’t add substantive commentary to the filings since I don’t like to use this blog to discuss pending matters.

In November, the American Bar Association moved for sanctions. That motion is currently returnable January 17, 2013. Returnable, in this case, simply means that is the day for final submissions. There won’t be oral argument on that, or any other matter, unless the judge specifically asks for it.

This is the ABA submission and Rakofsky opposition:

ABA-Affirmirmation-Harris

ABA-MemoOfLaw

Rakofsky Opposition

ABA-ReplyAffirm-Jones (added 1/16/13)

ABA-ReplyAffirm-Dale (added 1/16/13)

ABA-ReplyMemoOfLaw (added 1/16/13)

Rakofsky letter to court dated 3/13/13 and Matthew Goldsmith transmittal letter to ABA dated 3/14/13  (added 3/21/13)

ABA letter to court responding to Rakofsky, dated 3/20/13  (added 3/21/13)

Our group of 35 defendants, represented by Marc Randazza, just made our own motion, also returnable January 17th. These are the filings so far:

Turkewitz Affidavit

MemoOfLaw (Randazza)

Exhibit A – Transcript of June 28, 2012 hearing on motions to dismiss

Exhibit B – Letter Judge Hagler July 1 – Rakofsky letter explaining why negligence claim was not duplicative of defamation claim

Exhibit C January 3, 2012 order, denying plaintiffs’ motion as “incomprehensible”

Exhibit D Marc Randazza’s June 17, 2011 reply affidavit in support of his motion for pro hac vice admission and extension of time

Exhibit E The April 1, 2011 transcript in United States v. Deaner, Criminal Action No. 2008-CF1-30325 (D.C. Superior Ct.)

Exhibit F The March 31, 2011 transcript in United States v. Deaner, Criminal Action No. 2008-CF1-30325 (D.C. Superior Ct.)

Exhibit G Joseph Rakofsky’s March 31, 2011 Facebook status update, which reads “1st-Degree Murder…MISTRIAL!”

Exhibit H Redacted copy of October 6, 2010 e-mail to an investigator in the Deaner case, wherein Rakofsky uses the word “trick” (commonly referenced as the “trick e-mail”)

Exhibit I Rakofsky’s June 9, 2011 e-mail to Michael Doudna, submitted as an exhibit to Doudna’s motion to dismiss and motion for sanctions

Exhibit J Rakofsky web ads from Connecticut, Washington DC and New Jersey

Exhibit K – Summons and complaint; amended summons and amended complaint

March 6, 2013 Update- new filings this week

RakofskyOppAndX-motion

Turkewitz Reply/Opposition Affidavit

Exhibit P – Turkewitz Sur-Reply Affidavit on motion to admit Randazza pro hac vice.

Randazza Reply/Opposition Memo of Law

Minutes of April 8th Oral Argument, (added 4/22/13)

Decision and Order (April 29, 2013) (Motions to dismiss granted; motion for sanctions denied)

 

 

Rakofsky Oral Argument on Motions to Dismiss (updated)

Yesterday oral argument was heard on the Rakofsky matter. As regular readers know, I am both a defendant and local counsel for 35 defendants. Marc Randazza is pro hac vice counsel. I will not reiterate the facts. The matter is now before the Hon. Shlomo Hagler, who has written on First Amendment cases in the past.

As a caveat, these are simply brief notes. Argument lasted an hour and 40 minutes and Rakofsky was represented by his counsel, Matthew Goldsmsith. Rakofsky was not present. The room was stuffed with lawyers, defendants, summer associates and others. Probably about 40 or so people packed into a small courtroom.

Since many claims overlapped, everyone did not speak. There was no need. The defendants presented arguments first for an hour, and Goldsmith used the last 40 minutes. By the end, the judge indicated that he was considering sanctions.

The Washington Post went first, as it was the primary source of the blogospheric maelstrom that followed. The Post argued that their two articles were fair reports of a judicial proceeding. Maybe there are syntax issues between the judge’s actual words and their reporting, but this is not actionable.

The American Bar Association went next to argue that there is a republishers privilege for almost all others reporting the WashPo stories, and you need gross irresponsibility to get around that.

The Washington City Paper argued that there was no long-arm jurisdiction for out of state defendants.

TBD.com (Allbritton) argued that there was lousy service.

Randazza waived jurisdiction arguments for many of us (not all), as many want a decision on the merits to preclude Rakofsky suing again in their home states. Those people who live in states with strong anti-SLAPP statutes, however, don’t need a merits decision because if Rakofsky sues them in their home state they have more serious sanctions than New York’s to work with. Our Bannination defendant gets special mention due to a 47 USC 230 immunity argument for an internet forum. Randazza also agued that Rakfosky is a public figure — he tried a murder case and apparently gave at least two interviews to the press — and there is therefore a heightened standard under NYT v. Sullivan.

Defendant Doudna argued no jurisdiction for him as he is an out-of-state defendant, and moved for sanctions (others are awaiting judicial merits decision before making sanctions motion).

Goldsmith gets the next 40 minutes. None of the arguments appeared to sit well with the judge, and it was near the end that sanctions were discussed:

Goldsmith  seemed to claim that the statements on their face might not be defamatory, but that the way they are phrased is. For example, that the mistrial was not declared due to Rakfosky incompetence, but because Rakofsky asked to be relieved as counsel. The judge wanted the actual statements that were claimed to be false.

Goldsmith tried to claim that it was defamatory to claim Jackson was “astonished” by the incompetence. Justice Hagler, however, reads the Jackson transcript into the record for our case. He also quips that he is reading it “because I don’t want to get sued” if he messes any part up. Laughter in the courtroom.

There was much argument by Goldsmith trying to claim that the mistrial was because Rakofsky asked to be relieved, not because Deaner fired Rakofsky. But the judge has the transcript and the transcript is clear that Deaner wanted a new lawyer, even though it meant prolonged incarceration while he awaited a new trial.

Justice Hagler  noted that Jackson was “verbose” in his condemnation of Rakofsky. If Rakofsky’s conduct is unrelated to mistrial, why did Jackson spend 2-3 pages on it?  Goldsmith tried to claim that this was mere dicta. But what does it matter to the defamation claim, the judge wanted to know. Rakosky didn’t suffer an injury because of a mistrial, but because of comments about his competence and ethics.

There was much discussion of the “trick” email. After Goldsmith gave Rakofsky’s version of events –  that “trick” only meant to hide the identity of the investigator — Justice Hagler asked, “Trick is the same as truth?” Goldsmith conceded that the email was sent by Rakofsky.

Goldsmith tried to argue that linking to WashPo made everyone liable in NY because WashPo does biz in NY and has commercial purposes. Justice Hagler: “That would change the very fabric of the law if it were true.”

After going through claims of prima facie tort and intentional infliction of emotional distress and civil rights violations, Justice Hagler pressed Goldsmith on the questions of whether all the causes of action were inextricably intertwined with the defamation cause of action. Goldsmith said he was simply pleading in the alternative. This concept came to a  head with the negligence cause of action. What duty is there? What breech? What injury? Justice Hagler: “To say this is negligence is beyond the pale of professional practice.”

The judge strongly suggested he withdraw duplicative claims as there was a good case for sanctions. Goldsmith was unable to demonstrate a basis in law or fact to make that claim when asked.

The judge gave Goldsmith time to speak with Rakofsky to see what they would withdraw, cautioning the plaintiff:  “I don’t think you’re going to like my decision.” He speculated aloud that he might find himself making decisions based on Rakofsky’s competence and ethics.

Final note for the non-lawyers who may be reading: The fact that judges ask certain questions and appear to develop a disposition as they learn the facts and parry with attorneys doesn’t mean that they will rule in the way you think. We saw that yesterday — when Chief Judge John Roberts voted to uphold President Obama’s health care law despite asking critical questions from the bench during oral argument. Judges, sometimes, surprise.

Decision and order granting the motions to dismiss (updated 5/12/13)

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.

Documents:

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

 

Rakofsky Motion #13 (ABA Moves to Dismiss)

I believe this is the final motion to dismiss being made by defendants in the Joseph Rakofsky defamation case. As regular readers know, I am both a defendant and local counsel for 35 defendants. Marc Randazza is our pro hac vice counsel.

The defendants for this motion are the American Bar Association, the ABAJournal and two of its writers. Defense counsel  is Mark Harris and  Jennifer Jones of Proskauer Rose. The first article by the ABAJournal claimed to be defamatory is here. The second is here.

Pertinent documents for the motion to dismiss:

Memo of Law

Debra Cassens Weiss Affidavit

Sarah Randag Affidavit

 

Rakofsky Motion #12 – Allbritton and TBD.com move to dismiss

There is now another motion to dismiss in the Joseph Rakofsky defamation lawsuit. This one was filed Tuesday by defendants Allbritton and TBD.com. Allbritton owns seven broadcast television stations as well as TBD.com. TBD aggregates news stories. This was the post they were sued on, which linked to the original Washington Post article on the subject.

Defense counsel is Jake Goldstein from Levine Sullivan Koch & Schulz.

The motion does not address the content of the material posted, but simply attacks the failure to properly serve the papers properly, that TBD.com is not an entity that can be sued, and the fact that Allbritton is not subject to jurisdiction in New York. (The company is based in Arlington, VA.) While the company owns broadcast television stations, none of them are in New York.

If you want to read their papers, this is the relevant document:Memo in Support of Motion to Dismiss

Update 6/25/12: Reply Memo of Law: Reply Memo

Rakofsky Update (A court order and a settlement) – Updated x5

This is an update on the Joseph Rakofsky defamation case in which I was sued along with many, many others, and for which I am now local counsel for 35 of the defendants (with Marc Randazza as pro hac vice defense).

Two bits of information today. First is an order from the court regarding a proposed  Order to Show Cause for some type of relief. This was apparently brought by Mr. Rakofsky. This was not our submission, nor that of any other defendant that I know of. I have not seen the underlying papers, as such proposed orders are brought to the court without notice to adversaries. Copy here:  Rakfosky Order-1.3.12 – OTSC. The order reads:

Decline to sign

Papers are incomprehensible

In the other bit of news, criminal defense lawyer Lori Palmieri of Florida has apparently settled with the plaintiff for undisclosed terms last July. Copy is here: Rakofsky-Palmieri-Settlement.  Her original post on Mr. Rakofsky, for which she was sued, is gone, and her apology to Mr. Rakofsky is here.

—–

Update, 1/12/12 – The papers that Justice Goodman deemed “incomprehensible” have now been procured, requesting a smorgasbord of relief: RakofskyOrderToShowCause.  On a fast read, the following appears to be new:

The following have settled: Martha Sperry and Martha Sperry Daily, Advantage Advocates, Heslep & Associates.

Mr. Rakofsky seeks to add new defendants. One of them is Google, which he wants to add as a defendant because  ”because it has refused to preserve certain information in the absence of a formal Court order…” (pp. 8-9). Previously he had sought to add Yahoo! and Techdirt, among others, and they are in this request also. The prior attempt was rejected because a stay was in place.

Update #2, 1/13/12 - Mr. Rakofsky has moved in the Appellate Division for a partial lifting of the stay: Rakofsky AppDiv Motion

Update #3, 1/27/12 – Our response to Mr. Rakofsky’s request for a partial lifting of the stay:Memo Of Law and Turkewitz Affidavit

Update #4, 1/31/12 – Rakofsky’s Reply to other defense opposition to the motion in the Appellate Division to lift the stay for him only. No response to our papers (which were served 1/26/12, one day before they were due to be served): RakofskyReply. The opposing papers to which he refers are here: Teschner  (Yampolsky) Opp and Weissman (Reuters) Opp

Update #5, 2/24/12: The emergency application to the Appellate Division has been denied.

Rakofsky Motion #11: Our motion to dismiss (Updated x3)

This motion is on behalf of the 35 defendants (me included) that Marc Randazza and I represent.

I won’t bother re-hashing the Rakfosky history, you can Google it if you want.

Selected Documents:

Memo of Law

DeVoy Affidavit

Turkewitz Affidavit

Wells Affidavit

Exh G – Financial Crime

Exh H WhiteCollarCT

Exh I – Yellow Bot

Exh J – Lawyer search

Update 3/9/12: Our motion to dismiss was served December 15th, but the court clerk declined to take it at the time because the date of service was so far in front of the motion’s return date in March. While we waited, a stay in the case was reinstated. It expired today, March 9th. So the motion was re-filed today.

Update 5/21/12 Rakofsky has served the following documents in opposition to our motion to dismiss:

Affidavit of Forensic Expert

Goldsmith Affirmation

Rakofsky Affidavit

Memo of Law

Update 6/8/12 – Our Reply papers:

My Reply Affidavit: ET-ReplyAffid-Final

Our Memo of Law: RakofskyReplyMemo FINAL

Rakofsky Moves to Add Yahoo!, TechDirt and Others to Defamation Action; Asks Sanctions Against Former Lawyer (Updated x2)

Joseph Rakofsky, as seen on a copy of his former website

[This post was substantially updated on October 26th, with new documents added and more informaton on the new claims)

Joseph Rakofsky has not, quite apparently, put away his shovel. He is still digging. (Synopsis of case and my opinions before becoming local counsel, here.)

He has now filed a motion to amend the complaint a second time, with a 300-page whopper including 1,248 paragraphs. He has 78 causes of action and demands, and, if my calculations are correct, he demands $145,000,000 in damages.

In addition to the extraordinary damage claims, Rakfosky seeks to add Yahoo! and TechDirt into the lawsuit, among 15 new parties.

And he seeks to create a new cause of action for Cyber-bullying, or Internet Mobbing, due to the things people wrote about him after his ill-fated trial before Judge William Jackson down in Washington DC.

He has also asked for sanctions against his former lawyer, Richard Borzouye, who had asked to be relieved as counsel, with the consent of Rakofsky.

And he still has the St. Thomas School of Law listed in the Complaint, even though it capitulated with a settlement.

And he still sues on behalf of his professional corporation, even though he may not do so without counsel.

He also wants to start engaging in discovery, seeking subpoenas to get information from Google and other places about anonymous defendants.

He also has engaged a self-professed expert in forensic computer work in an attempt to gain access to the computers of some of his critics, Osvaldo Alayon, though Alayon doesn’t bother in the affidavit to lay out the basis of her expertise. A Google search of  – ”Osvaldo Alayon” forensic computer — turns up zero hits. The claim is that one of the defendant websites has evidence of child pornography on its site. In viewing the Affidavit and Exhibits for that claim, I feel compelled to give this legal warning: The comments and pictures are infused with sophomoric  humor and badly photo-shopped photographs, internet memes, and inside jokes that will be seen as witless to some and irreverant to others. There is no actual child porn, so if you are into that kind of thing, well, do me a favor and go away and never come back. The affidavit is here and the exhibits are here.

And he is asking for a default judgment for those that have not appeared.

Yeah, that’s a lot of stuff. Here is a very quick guide to some of the new claims, though this isn’t by any means comprehensive, and is put together based on a quick skim of the materials:

You can find the Notice of Motion and supporting Affidavit at this link.

Part 1 of the proposed Second Amended Complaint is here and Part 2 is here. The scanned images are large files as Rakofsky refused to serve anyone with digital files.

A few notes on the Complaint, as it is so large, in order to help you find things:

Pages 1-29 – identify parties

Pages 29-55 Rehash of trial and claims against Washington Post

Paragraph 140 he writes that Judge Jackson made “denigrating” remarks about him on the record, writing that the judge “for reasons that can only be speculated, gratuitously published on the record that he was ‘astonished’ at Rakofsky’s willingness to represent a person charged with murder and at his (Rakofsky’s) ‘not having a good grasp of legal procedures’.”

Paragraph 144 he gives his explanation for the “trick” email that he sent.

On page 140, the action against St. Thomas School of Law and Deborah Hackerson is continued even though he settled with them.

New action against The Atlantic Monthly and Yahoo! are on page 161

New action against TechDirt and its writer Mike Masnick is on page 164

New action against Canadian Lawyer Magazine and Reuters Canada on page 167

Total demands for defamation he makes are $46M ($1M for each of 38 causes of action except for Greenfield and me for $5M each)

Page 170 is the end of the defamation claims, and the ones for Intentional Infliction of Emotional Distress starts here — demand for damages is $10M

Page 178 is the claim for interference of contract. $10M demanded

Page 181 is a claim for violation of Civil Rights Law for use of his image in the news stories, claiming it was used for advertising purposes – total demand is $10M

Page 184 is a claim for “Intentional Interference with Prospective Economic Advantage” and a demand for $10M

Page 186 is a claim against Washington Post for “Injurious Falsehood” and a demand for $1M. This is the 43rd Cause of Action, and similar claims continue until page 294 at the 77th Cause of Action, at $1M demanded for each, for a total of $34M

On page 294 is a claim for “Violation of Prima Facie Tort” which he defines as “mobbing” or “cyber-bullying” and a demand for $25M

Update #2 – 11/18/11 – Motion is withdrawn, as per the Court, as it was filed while a stay was in place

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