I have been thinking about this topic for a while now and finally decided to publish my thoughts. Ultimately, I think it is worth doing so. At the very least, maybe it can serve as a cautionary tale for anyone interested in sharing online about the very real, very unanticipated perils such interaction can bring.
Studio readers may recall a post I wrote back on April 11, 2011, which was entitled: Tip of The Day: Don’t Mix Legal Incompetence with Social Media. It was about an article I read in the Washington Post published on April 1, 2011 about a young attorney, Joseph Rakofsky, and his first murder trial. In retrospect, that date is rather appropriate. The short of it is that Mr. Rakofsky encountered difficulties while representing the defendant, who is now awaiting a new trial with a new attorney.
Don’t bother looking for my post, I took it down.
There may be a few who wonder why I would do such a thing. Approximately three months ago, I learned I had been named as a defendant in a defamation lawsuit in New York Supreme court. Me and approximately 70 or 80 other defendants, who all apparently made some hay of the Washington Post story. The suit qua suit didn’t bother me – Mr. Rakofsky did have some serious jurisdictional problems naming me in the New York litigation and probably wouldn’t survive a rule 3211 Motion To Dismiss. What did catch my eye and gave me some pause was the fact that Mr. Rakofsky had his own version of what had happened down in D.C during that trial. And guess what? From a pure proof perspective, at the time I wrote that post, I had no more hard evidence supporting the conclusions of the Washington Post writer than I do the conclusions of Mr. Rakofsky himself in his lawsuit.
Around the time of the initial post and in the days that followed my learning of the suit, I saw a lot of harpooning and lampooning of Mr. Rakofsky across the Internet. He was a hot topic, to say the least. Make no mistake here – I was upset by the original story and thoroughly angered and frustrated about being named in this suit, for something which I felt was not a legal wrong. But I have to recognize that it could be a different sort of wrong.
Now that there is a suit, I know that the real place for battle is in the courtroom, during pre-trial motion, discovery and, if it gets that far, trial. Not on Twitter, in the blogs, or in the court of popular opinion, where the popular will rule the day. I guess that is our Brave New World and that traditional notions of public and private certainly have undergone dramatic change. I know I would have been pretty horrified if my early missteps in court were shared across the Interwebs for all to see. I am sure Mr. Rakofsky did not undertake this trial and then phone up the Washington Post and all the legal bloggers inviting them to watch and critique his first trial. I guess it is my supreme luck that I graduated law school before email was mainstream and back in the day that the Walt II ruled the online research world. Only a select few were there to witness my early days at Motion practice, and thankfully for me, they aren’t talking.
Mr. Rakofsky’s first trial and the subsequent civil suit did get me thinking about my early days as an attorney. I had the benefit of a very large law firm to serve as my training ground, loaded with resources, dripping with prestige, and stocked with plenty of senior associates to offer assistance on the finer points. Despite these benefits, there also were plenty of opportunities to make a wrong move and suffer correction. It often felt like hazing. I will spare you my personal stories. Suffice to say I can only imagine the challenges a solo faces fresh out of law school, let alone one taking on a felony murder case as his first trial. And let alone having his mistakes trumpeted across the Internet for all to see. Judgment by public ridicule? I am not sure this is a positive direction.
While Mr. Rakofsky’s travails certainly can be viewed as an example of the pitfalls of early practice especially on particularly challenging cases, another lesson to be learned here is to, in fact, learn a lesson, rather than reveling in the fine sport of shooting fish in a barrel. And I see a lesson for everyone.
For Mr. Rakofsky: there are resources out there and I sincerely hope that he considers availing himself of them. That is, once he is done with restoring his name, if he can via this mega-suit or, perhaps, more effectively, by going back into the trenches and showing his worth to his clients through zealous, principled representation.
For myself: I regret my part in this. My mistake was taking as truth the Washington Post article without checking further. Without contacting Mr. Rakofsky himself. My post was about him, wasn’t it? Shouldn’t I, as a responsible blogger, check all sides of a story before reporting on that story, particularly a negative story about a person and his livelihood? Call me crazy. I am not usually one to take any assertion at face value, and prefer to perform my own research. Generally speaking, one can usually rely on the veracity of a story in a major newspaper. However, there are never guarantees – papers print retractions every day. And when it comes to an attorney’s reputation and livelihood, maybe it wouldn’t hurt to think twice. If there is another side to this account, then Mr. Rakofsky will undoubtedly press that side and the New York Supreme Court will enlighten us all as to whether defamation occurred or whether the truth is a defense. That is not for me to say, nor the Post to say, nor the blogosphere to say.
And for the rest: think before you write. Consider your message. Is it of so great a value that it is worth the potential fall out? Will it put someone else in a compromised position? Is the benefit of that compromise worth the cost to you or the person you target? Sometimes, it is better to pass up the ripe, low hanging fruit and save yourself the inevitable stomach ache. We certainly could expound on the lesson to be learned from Mr. Rakofsky’s situation without naming names and casting judgments in a court of popular opinion.
I wish everyone involved in this the best and trust that the whole truth will come out. One truth already is available for consideration: reporting requires investigation. Always one to look for the lemonade in the lemon, I am now wiser about my subject matter and think I will stick to the law, research, writing and technology. And leave the attorney-bashing to those with greater skill and thicker skins and stronger stomachs.