Joseph Rakofsky in the Happysphere

In the last couple of weeks we learned that two more of the Rakofsky v. Internet defendants had settled with Rakofsky—not with money, apparently, but by abasing themselves, their codefendants, and the First Amendment.

LisaLori Palmieri, who on 6 April 2011 wrote a dreadful piece of blatant marketing dreck (archive.org, via comments here) about Rakofsky's failure in the Deaner case…

It seems that neither Rakofsky’s law degree nor common sense played a part in his preparation and delivery for this case. This is a perfect example of why choosing an experienced and legitimate Tampa criminal defense attorney [link to her main site] is very important (one that is Board Certified is even better).

…and who in May 2011 (after Joseph Rakofsky filed his lawsuit against Palmieri and seventy-three other defendants) used the suit as an excuse for another marketing foray (archive.org, again via Greenfield's commenters)…

You don’t want to find yourself in a situation of having to worry about the competence of your Tampa criminal defense lawyer while dealing with very serious criminal charges. In the Rakofsky case, his incompetence was overt and obvious. What if it hadn’t been?

…on 1 July 2011 wrote another post, which might have been written by Rakofsky himself:

Last month, I posted about New Jersey lawyer, Joseph Rakofsky regarding his representation of a criminal client named Dontrell Deaner in a murder trial in Washington, DC after The Washington Post’s article.

. . . . .

Mr. Rakofsky has chosen to speak in court rather than commenting on various blog posts. Those who have formed conclusions one way or another about Rakofsky have taken the bloggers’ bait, alas, it would seem such people cared for the salacious headline rather than to paint a complete picture. I am responsible for my blog post and I was wrong not to be more comprehensive in my comments. Give Mr. Rakofsky the benefit of the doubt until you know the whole story, then make your own conclusion. Mr. Rakofsky believes he has been harmed by people who came to conclusions about him without benefit of having all the necessary information.

I agree with Ms. Palmieri: when the story first broke, we didn't have all of the necessary information.

For example, we didn't know that not only was Joseph Rakofsky's judgment so deficient that he took a murder case for his very first jury trial ever, but it also was so bad that when he was criticized he would double down by filing a frivolous lawsuit against his critics.

We didn't know that not only were Joseph Rakofsky's lawyering skills so bad that the presiding judge in the criminal trial called them "not up to par under any reasonable standard of competence under the Sixth Amendment," but they also are so poor that the presiding judge in the civil case would reject one of his pleadings as "incomprehensible."

We didn't know that not only was Joseph Rakofsky so dishonest that he asked an investigator in writing to "trick" a potential witness into telling a particular story, but he also was so dishonest that, on 13 October 2011, he would claim in an affidavit that he was in good standing with the New Jersey Bar when in fact he was ineligible to practice law (PDF—see pp. 5-6).

So while I agree with Ms. Pamieri that we didn't have all of the information in April 2011, the story would have been much worse if we did.

Palmieri probably looks at it differently—if she had known that Rakofsky was going to file a frivolous suit, she'd never have used his incompetence in her marketing. And Martha Sperry would probably agree.

Now, I understand why someone might want to settle a frivolous lawsuit—even one in which the court has no jurisdiction over them. You've got to balance the costs and the benefits. If continuing to fight would cost more than settling (taking into account psychic and moral as well as financial and temporal costs), by all means: settle. I think I might almost be able to imagine circumstances under which I might want to settle this particular frivolous lawsuit with Rakofsky. (The circumstances probably involve traumatic brain injury, but still.)

But the price that Palmieri and Sperry paid to get Rakofsky off their backs is higher than I would pay.

Sperry wrote:

Initially, the part that bothered me most was that the attorney, Joseph Rakofsky, was said to have committed his errors, was skewered across the blogosphere and in mainstream publications (I was one of those doing the skewering), filed his lawsuit claiming defamation, and then was subject to even more ridicule for availing himself of legal process. My sense is that Rakofsky engaged in the course of action dictated by our legal system. Won’t the court decide if there is merit to his points? Why should any complain if they are brought into court? Sure it causes aggravation, but if legal harm has been committed, it will be sussed out. So will innocence, or non-liability in the case of a civil matter. End of story.

This is the premise on which the happysphere is constructed: that there are systems in place for issuing corrections to unethical or incompetent lawyers, so we blawgers should let those systems do their job and keep our mouths shut. In other words, let the government take care of it.

It's very appealing to the unethical and incompetent, as well as to those who wish everyone would play nice.

It's also vacuous nonsense.

Rakofsky filed a frivolous lawsuit, in which he attacked the First Amendment, against lawyers. This is the popular conception of what lawyers do, but it is not "the course of action dictated by our legal system." The course of action dictated by our legal system in this case—as any competent lawyer who cared about Rakofsky would have advised him—was to suck it up and do better in the future.

That Rakofsky was subjected to even more ridicule for filing a frivolous suit against a bunch of trial lawyers—most of whom fight for a living—was not surprising.

The additional ridicule was not undeserved: filing suit was ill-advised, foolish, and unethical. The course of action dictated by our legal system now is to dismiss the case, take a year or two off, and start afresh. Joseph Rakofsky won't do this, though, and so the ridicule will continue. Everything Rakofsky has done in the case since filing suit has been ill-advised, foolish, unethical, or incompetent. Rakofsky is subjected to ridicule because he makes himself ridiculous.

Nor is the additional ridicule that Rakofsky gets every time he does something to perpetuate his ridiculous lawsuit inappropriate. The system generally doesn't work. The innocent get convicted, the reckless go without liability, unethical lawyers skate, and incompetents victimize more clients.

I suspect that those who subscribe to the happysphere theory of the blawgosphere—that we shouldn't speak ill of each other, or if we must speak ill that we shouldn't name names—share a reliance on government to take care of things in the real world as well.

Those who don't subscribe to that theory, I suspect, share my belief that government can't be relied upon: the system generally doesn't work. We also, I think, share a feeling of responsibility for making the world a better place. We don't make the world a better place by helping Apple sell more iPads; we do it by revealing who's scuttling in some of the darker corners of the profession; we do it by showing potential clients where the marketing lawyers live; and most of all we do it by making lawyers think they don't want to get caught in the dark corners themselves.

When Rakofsky's suit gets dismissed and the judge orders sanctions, Rakofsky will prove judgment-proof. It's not going to make the news; almost nobody will hear about it.There is little general-deterrent effect in sanctions that the plaintiff won't have to pay.

But other young lawyers should know how bad things can really be when you take on cases you're unprepared for, and then when you file frivolous lawsuits, and conduct like Rakofsky's should be scary to the lawyers who might be tempted to do the same. Because the costs to the public from behavior like Rakofsky's are much greater than the cost to Rakofsky ever will be.

Rakofsky did not, before making the mistake that brought him into the spotlight, learn the lessons that were there to learn. So he became part of a lesson. The more that lesson is reinforced, the better the chance that some other undereducated and inexperienced young man or woman will learn it before making such a mistake.

And every time Joseph Rakofsky opens his mouth, or files a paper, in his abomination of a lawsuit, the lesson is reinforced.

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.
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One Response to Joseph Rakofsky in the Happysphere

  1. shg says:

    For all the empty rhetoric being used by the settling defendants (and the marketers, hang-wringers and happyspherers) to rationalize their conduct, nothing touches the harsh truth of this:

    We don’t make the world a better place by helping Apple sell more iPads; we do it by revealing who’s scuttling in some of the darker corners of the profession; we do it by showing potential clients where the marketing lawyers live; and most of all we do it by making lawyers think they don’t want to get caught in the dark corners themselves.

    Well said.

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