The Object Lesson of Joseph Rakofsky

To those like who want the practical blawgosphere to be the Happysphere, with no unkind words spoken about anyone (unless, as Tannebaum points out, there are no names mentioned, which makes the Happysphere more than a little passive-aggressive), the Joseph Rakofsky story should provide an object lesson.

Joseph Rakofsky’s online marketing is a parade of horribles:


(Bonus points: Rakofsky claims Sherlock Valentino Grigsby as a member of his firm; according to The Post, he had hired Grigsby as local counsel on this case.)

Joseph Rakofsky took on a case that he was not competent to handle.*3 The legal standard for effective representation is frighteningly low, so a judge doesn’t declare a mistrial based on incompetency of counsel unless the lawyer is really, really, really incompetent. The judge said that Rakofsky’s performance was “below what any reasonable person would expect in a murder trial,” but “in a murder trial” is a red herring a reasonable person would expect the same standard of performance in any criminal trial in which someone’s freedom was at stake. If Rakofsky shouldn’t have been trying murders, he shouldn’t have been trying anything without adult supervision.

Joseph Rakofsky’s intentions were good. He didn’t mean to hurt Dontrell Deaner. He intended to effectively represent him. Maybe he thought he would make up for his deficit in experience by hiring Sherlock Grigsby as local counsel. But it’s hard to try a criminal case with someone whispering in your ear, and—according to Grigsby—Rakofsky wouldn’t accept Grigsby’s advice. While Rakofsky didn’t intend to hurt Deaner, he did.

Now, Joseph Rakofsky’s patronage of Yodle didn’t lead to his taking on a case that he was not competent to handle (his representation of Dontrell Deaner predates his Yodle website by five months). But it’s all part of the same story. The cover blurb is this: hungry lawyer’s reach exceeds his grasp. As Greenfield and Tannebaum correctly point out, this is what we’ve been trying to tell you for years.

For all his good intentions, Rakofsky failed to learn the lesson that Tannebaum and Greenfield and others keep repeating and—to the chagrin of the Happysphere and legal marketers everywhere—illustrating with specific examples: don’t try to be something you’re not. As a result of his failure to learn the lesson, unkind words have been spoken about him, in the Washington Post and even in the Happysphere.*4

But Joseph Rakofsky isn’t special. He didn’t cross any line that thousands of lawyers, young and old, don’t cross every day: claiming attributes that they don’t have and taking cases that they are not ready to take. Nothing he did made him any more blameworthy than any of those lawyers: lawyers whose need to make a buck overcomes their judgment and ethics.*5

Legal regulators have their hands full; they’re not paying a lot of attention. The chances that unethical overreaching will come to the attention of the state bar are slim; that the state bar will do anything about it, practically nonexistent. The need to make a buck is a powerful force in recessionary times. Judgment and ethics, it seems, can easily be overwhelmed, especially when misconduct has no concrete consequences. What those who, bucking the Happysphere, name names add to the equation is concrete consequences.

Carolyn Elefant writes:

Most lawyers—indeed, myself included—ignore our colleagues’ advertising-related foibles, figuring that at worst, they make themselves look bad or set themselves up for an ethics charge. Here, Rakofsky’s case is a wake-up call: lawyers who fail to heed our professional ethics rules, either by intent or ignorance, will likewise flout those rules to the detriment of their clients. In Rakofsky’s case, a watchful judge spared his client. But who knows how many other clients will suffer if we lawyers don’t keep watch on our colleagues?*6

The problem with deceptive advertising like that offered by Yodle is not that it might result in an ethics charge or even that it is against the ethical rules;*7 but that it is deceptive.

If Joseph Rakofsky had dedicated a little more thought to ethics and a little less time to puffery, he might have referred Mr. Deaner’s family to someone with more experience, or associated experienced lead counsel, or even turned down the case and encouraged Mr. Deaner to stick with his CJA lawyer, Daniel Quillin, who has been practicing law since Rakofsky was four years old.*8 And Mr. Deaner might not be spending the next year wondering why he’s sitting in jail.

What might have encouraged Joseph Rakofsky to dedicate more thought to ethics?

More examples of concrete consequences.

[Update: Military lawyer Eric Mayer is hot on Joseph Rakofsky's social-media trail.]


*1 Yodle no longer puts its name on its unethical websites. C’mon, Yodle, where’s your pride?

*2 Why we need hyphens: Because a violent crime defense lawyer is not the same as a violent-crime defense lawyer.

*3

*4 Once upon a time there was no such thing as bad publicity. With every news story online and accessible forever, that is no longer true.

*5 You know what’s really going to prejudice Rakofsky? This is:

(h/t Carolyn Elefant)

*6 This is nothing that Greenfield, Tannebaum, and others haven’t been saying for years, but it’s good to have Elefant in the room.

*7 When ethics and the rules coincide, it’s mere coincidence.

*8 This is not to say that Quillin was necessarily competent—there are more than enough incompetent 30-year lawyers. But odds are excellent that Quillin was more competent than Rakofsky.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in advertising, criminal defense lawyers, ethics and/or professionalism. Bookmark the permalink.

15 Responses to The Object Lesson of Joseph Rakofsky

  1. “Joseph Rakofsky’s intentions were good. He didn’t mean to hurt Dontrell Deaner. He intended to effectively represent him.”

    You’re gilding the lily a bit. Rakofsky’s ineptitude is equaled by his hubris. Rakofsky’s caption on his firm video reads: “Johnnie Cochran would be proud”. I, for one, am thankful that the trial judge clipped Icarus’ wings before Deaner was sent up the Styx. Rakofsky’s PR spin doctoring on his Facebook page reflects the soaring heights of narcissistic entitlement. He took on the case for fame and glory, nothing more, nothing less.

    • Mark Bennett says:

      Antonin, we can all be thankful that Rakofsky got cut off before he could do more harm, but that says nothing about Rakofsky’s intentions, about which you could safely assume I have information that I haven’t shared.

  2. Mark:

    Unless you can read Rakofsky’s mind, then the information you haven’t shared is entirely subjective. In any event, whatever Rakofsky’s intentions may or may not have been—whether noble or ignoble—his former client now has to sit in jail for a year waiting for a new trial while Rakofsky’s intentions, like angels, can dance on the head of a pin.

    Enjoyed the post.

    Antonin

  3. As we say in my house (usually with an Eeyore voice): You guys were right, and I was wrong. There truly are some scumbags out there, and the bar associations do not seem to be up to the task of holding them accountable. It will be interesting to see what — if anything — the relevant bar association decides to do in this case.

  4. Noah Clements says:

    What’s amazing to me is that his online marketing resulted in such an important case coming his way. Apropos of the FB comment (#winning!), Yodle should promote this situation as a triumph of their marketing. “If even a yodle like Jakofsky can get a paying murder case from our site, imagine what ethical and experienced lawyers like you can do.”

    The problem with taking your position on outsourcing marketing = outsourcing ethics seriously (which I have btw), is that it sucks to designe and write all that stuff. My own poor site is a result of non-outsourced half-assed marketing.

    • Mark Bennett says:

      I think you missed this: “His representation of Dontrell Deaner predates his Yodle website by five months.”

      Rakofsky was licensed on 29 April 2010, and hired on the Deaner case within a week.

      Yes, it sucks to design and write all that stuff. Life is hard, and doing things right is more difficult than doing them wrong.

  5. So, who’s filing the grievance?

  6. Tom Jones says:

    Ironic that people want to criticize attorney advertisments…Has anyone looked at the misleading and fraudulent employment ‘statistics’ put out by ABA accredited TTTOILET law schools? Hypocrites

  7. Pingback: Of Nuclear Bombs and Fallout (or Crap is King) « Military Underdog

  8. Pingback: We Can Only Dream – bLAWg, bLOG, BLAHg by Criminal Lawyer Richard Hornsby

  9. Pingback: The Right To Counsel Includes The Right To Fire Your Lawyer : Litigation and Trial

  10. Pingback: Are You A Legal Expert? Really? « THE TRIAL WARRIOR BLOG

  11. Pingback: More on Joseph Rakofsky: Performing Due Diligence When Hiring A Lawyer | Koehler Law

  12. Amy Wuliger-Knee says:

    I must disagree with your comment that the “murder trial” comment was a red herring. As someone who practiced criminal defense for many years (and who appeared before this particular judge many times), there is a world of difference between trying a murder case and trying, for example, a misdemeanor possession or shoplifting case. Your comment suggests that you think the judge’s remarks reflect a policy of promoting bureaucratic administrative goals over constitutional rights. That assumes too much. I am not suggesting that those charged with lesser crimes deserve less competent lawyers – just that the level of skill required to competently represent someone charged with a lesser crime is, for lack of a better word, lesser. There aren’t that many lawyers willing to go the public defender route, and they have to cut their teeth somewhere. Every trial lawyer has to have a first trial, and the fact that it is his/her first does not make him/her incompetent. That said, a lawyer’s first trial should NEVER be a murder trial.

Leave a Reply

Your email address will not be published. Required fields are marked *

*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>