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:
- Yodle site? Check.*1
- Fraudulent trustworthy grey-haired lawyer pictures (courtesy of Yodle)? Check.
- Puffed qualifications? Check.
- Boilerplate text (courtesy of Yodle), shared by many other law firms? Check*2 and check.
(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.
*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.
*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.