Archive for the ‘Adventures in Lawyering’ Category

The other day a young attorney named Rachel Rodgers wrote a post at Solo Practice University called “Ethics Should Not Be Used as a Weapon Against Young Lawyers.” The post outlines a bit of the tension between older attorneys and the hordes of young lawyers now entering the marketplace and not finding jobs, many of whom are now starting their own practices (this was largely the theme of my post from yesterday, “Too Many Lawyers?”).

It’s a complicated issue, and it’s not even entirely clear what the points of contention are. I have commented a bit at Ms. Rodgers’ post, but the blawgosphere is starting to light up about it. Ms. Rodgers states that:

Professional ethics is supposed to be a code by which we lawyers operate to ensure that we are maintaining the highest level of integrity as we practice law. Unfortunately, many experienced attorneys have taken to using the word “ethics” and all of its connotations as a weapon against any attorney serving their clients in a way with which the criticizing attorney is unfamiliar or does not approve. Sadly, given that young and innovative lawyers are blazing a trail for new ways to both practice law and deliver their services, we tend to be the target for such ridicule. I have even seen some lawyers claim that young lawyers, especially solos, cannot possibly be ethical without the hand-holding (otherwise known as chiding) of more experienced attorneys.

Not the way to run a law practice

The thing about that is that legal ethics is a pretty vast field stretching back for centuries, and it is often difficult for even gray-haired lawyers to fully grasp it. Technology is fast outpacing ethics rules when it comes to advertising by attorneys–today’s ethics rules are useful for Yellow Pages ads, but not so much for blogs. That said, the question is whether the changes in ethics rules that need to happen can best be achieved through research and deliberation, which is pretty much how it has always been done, or through innovation and experimentation in a free market setting. Lawyers have never been much for a free market when it comes to how we actually practice law. We are not a profession with a great love of risk (quite the opposite, in fact).

Scott Greenfield remarked on Ms. Rodgers and her practice back in June, and Brian Tannenbaum picked up the story yesterday:

Used to be that lawyers would work for someone and then go solo. Now there’s no jobs so lawyers are going from law school graduation, right to the computer to create their law firm twitter account and Facebook fan page, and presto – a practice is born with an “experienced, aggressive” attorney. Today we fake it until we make it, as the marketers encourage young lawyers to do.

I can’t exactly be critical of a newly-licensed solo, since I used to be one (technically I was a newly-licensed shareholder in a firm of three newly-licensed lawyers, but I became fully solo within 3 years, so close enough). At the same time, I have seen quite a few sketchy schemes from solo lawyers, and the value of having a mentor cannot be denied. I think law may be the only profession where brand new practitioners are allowed to jump head first into the pool right away, so maybe we need some sort of apprenticeship system. Just a thought. Matt Brown sums up the concern very well:

No lawyer, especially a young lawyer, is going to see every ethical pitfall. Whatever it is that you want to do may be the next best thing in lawyer marketing since sliced bread, but there’s no rule insulating from attorney discipline those lawyers who engage in innovative but ethically-prohibited business practices. The truth is that ethics rules will prevent plenty of lawyers from opening up certain types of “cutting edge” practices, just as the criminal laws ultimately stop many of my clients from operating their “cutting edge” businesses.

On the other hand, there is much to be said for reevaluating the risk-averse culture of lawyerdom. An extreme, possibly sarcastic example appeared on the blog What About Clients? the other day. A series of mantras, supposedly dating to 1836, appeared in the post “The 7 Habits of Highly Useless Outside Corporate Lawyers”:

1. Be risk-averse at all times. Clients have come to expect this from their lawyers. It’s tradition. Honor it.

2. Tell the client only what it can’t do. Business clients are run by business people who take risks. They need to be managed, guided, stopped. Don’t encourage them.

3. Whatever you do, don’t take a stand, and don’t make a recommendation. (You don’t want to be wrong, do you?)

4. Treat the client as a potential adversary at all times. Keep a distance.

5. Cover yourself. Write a lot to the client. Craft lots of confirming letters which use clauses like “it is our understanding”, “our analysis is limited to…” and “we do not express an opinion as to whether…”

6. Churn up extra fees with extra letters and memoranda and tasks. Milk the engagement. (If you are going to be a weenie anyway, you might as well be a sneaky weenie.)

7. As out-house counsel, you are American royalty. Never forget that.

I have my doubts about the historical authenticity (as does the blog’s author), but it does nicely illustrate how lawyers emphasize the avoidance of risk almost over all else. Quite often, that is exactly what corporate clients hire their lawyers to do. The question is whether that attitude should extend to lawyers’ own businesses. I used to tell my business client that I was their “professional pessimist.” In other words, they started their business to make widgets (or whatever), not to worry about contract terms or premises liability, so they should pay me to worry about it for them.

That’s not a bad way to help a client, but it’s far from the best way to run a business.

It’s not like young lawyers and old ones are fighting in the street. Thus far the debate seems to be limited to blog exchanges and ABA conferences. Sooner or later, the question of new lawyer innovation will butt heads with traditional risk aversion (some might say it has already happened), and it will be fun to watch.

Are there too many lawyers in America? You would certainly get that impression from blogs like Overlawyered. It is by now widely known that there are more new lawyers graduating law school than there are legal jobs available. Young lawyers, holding a brand new shiny law license and a mountain of debt, are going solo in increasing numbers. More and more functions traditionally performed by lawyers are being automated, shipped overseas, or converted to DIY by individuals and businesses looking to save money. The “circle of life” of the legal profession (and most other professions) is being interrupted by economic conditions, as older attorneys postpone retirement.

Net result: more lawyers for less work.

This is leading to a significant generational clash between older, more experienced lawyers and their younger colleagues who might have been promised the world only to find a desert. While the older generation laments hordes of fresh-faced newbies with newfangled ideas (yes, I’m overgeneralizing), the younger generation looks for ways to chart their own path and tries to innovate without getting anyone (or themselves) in trouble. I’m not convinced that younger lawyers get into ethical trouble at any greater rate than older ones, but it is a growing concern among older lawyers, justified or not.

Something will have to change about the legal profession. Technology has made legal information available to anyone, and the internet allows anyone to be their own lawyer. Despite the loudest protests of the legal profession, this change is unlikely to reverse. We will continue to have new lawyers and old lawyers, and in the quest to make a living new ideas will be tested. Some will be disastrous, and lawyers have a capacity to do more harm with bad business ideas than most other professions or industries (perhaps second only to medicine). We can fight each other and resist change, we can fight each other and doggedly embrace change regardless of the possible negative consequences, or we can help one another out and make the law work for as many people as possible. The era of the lawyer as warrior may be nearing its end. The new era has yet to be defined.

Via Pharyngula, we get the story of a small-town Texas bar owner squaring off against a local church:

In a small Texas town, (Mt. Vernon ) Drummond’s bar began construction on a new building to increase their business.. The local Baptist church started a campaign to block the bar from opening with petitions and prayers. Work progressed right up till the week before opening when lightning struck the bar and it burned to the ground.

The church folks were rather smug in their outlook after that, until the bar owner sued the church on the grounds that the church was ultimately responsible for the demise of his building, either through direct or indirect actions or means.

The church vehemently denied all responsibility or any connection to the building’s demise in its reply to the court.

As the case made its way into court, the judge looked over the paperwork. At the hearing he commented, “I don’t know how I’m going to decide this, but as it appears from the paperwork, we have a bar owner who believes in the power of prayer, and an entire church congregation that does not.”

This story seems to be popping up all over the interwebz of late, although the site linked by Pharyngula is down as of this writing. Alas, the story does not appear to actually be true. According to Snopes:

Our earliest sighting of the item comes from a July 2007 blog post, where the incident was presented as having happened in “a small, Midwestern conservative town” (rather thanMt. Vernon, Texas) to a lightning-struck watering hole identified solely as “a new tavern” (rather than “Drummond’s Bar”).

The story isn’t supposed to be read as relating something that happened in real life; it’s a modern day admonition to churchgoers not to allow transient secular needs to get in the way of their faith. What a person believes or will stand up for shouldn’t change because there’s a monetary factor involved; otherwise, it’s not true belief. As the fictional judge points out, there is something untoward about a congregation so willing to put worldly matters first that it denies it believes in prayer.

While the tale is an exaggeration of its underlying moral, that overstatement is a way of prompting folks to measure the contents of their hearts against those of the fictional congregation to see if they themselves aren’t at times engaging in a bit of religious distancing. Do they set aside their faith, and their pride in it, when faith becomes inconvenient? Or do they stand up for their beliefs and proudly proclaim them, even when doing so is to their disadvantage, financial or otherwise?

That’s too bad. I would have loved to have seen a witness list and deposition notices.

This is an old story, but it just caught my eye:

Two lawyers who used a pit bull logo and displayed the phone number 1-800 PIT BULL in their television ad have been disciplined by the Supreme Court for violating Florida Bar advertising rules.

The court overruled the recommendation of the referee in the case and found the ad was not protected by the First Amendment. It approved a public reprimand for the lawyers and ordered them to attend the Bar s Advertising Workshop within the next six months.

The lawyers involved, John Pape and Marc Chandler of Ft. Lauderdale, say they plan to appeal to the U.S. Supreme Court an won’t seek a rehearing from the state’s high court.

“I don’t believe that we are going to seek a rehearing. From a practical start it was a unanimous decision; there was no equivocation. I don’t think it would be very fruitful,” Chandler said. “We are going to appeal.”

The court ruled unanimously in the November 17 opinion, holding that the ad violated Bar rules because the image of the pit bull objectively had nothing to do with the type of services being provided by the law firm and improperly described the law firm’s services.

The full decision of the Florida Supreme Court is available online (PDF) should you care to check it out. The U.S. Supreme Court declined to hear the case, according to the lawyers’ own account of the case. Note that they still use “800-PIT-BULL”as their web address, and they have kept the logo available for viewing:

Many commentators have described out [sic] logo as “ferocious” or ‘fierce.” Please click here if you want to see the logo and determine if it is “ferocious” or ‘fierce [sic].

Photo by harminder dhesi photography on Flickr

I’ll skip over an analysis of their spelling and punctuation skills. I think I have made my feelings about pit  bulls clear by now. I think they are awesome. Mistreatment and misrepresentation of these wonderful dogs just makes me angry. The ad in question is also a caricature of ridiculous lawyer marketing, which played a role in the court’s decision. I don’t really want to get into the First Amendment argument supporting the ad. These guys have received support from some “free expression” advocates. For me, the guiding principle here is that just because something can be said does not mean it should be said.

This week I am at the Advanced Family Law CLE seminar in San Antonio. Some may be tempted to ask “Why?”, which is a good question. As I sit here with about 500 other lawyers, I ponder my decision to step away from family law yet immerse myself in it this week.

1. Keeping my skills up. Legal skills are a good thing to have. The mind needs exercise.
2. Reminder of why I’m doing what I’m doing. I’m in for four days of tale after tale of familial acrimony and bitter feuding, plus advice on how to facilitate such conflicts. I’m positively giddy about looking for a job.
3. Reminder of why I did what I did. For every tale of vindictiveness and strife there is a story of someone genuinely helped by a lawyer through a difficult process. I am proud to have been part of that system.
4. I already paid for it. I got a discount for being a solo, but this thing still ain’t cheap.
5. CLE credit. This 4-day seminar gets me 22.5 hours of credit. Since I’ve always been an overachiever where CLE is concerned, by Thursday I’ll be covered through 2015 or so.
6. I’m in San Antonio! I’m not sure if this is an argument in favor of or against my attendance :p

This will be an interesting few days. More to follow, I’m sure.

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Face it, we're long overdue for a visual lawyer joke (photo by Tiara at www.sxc.hu)

My friend Debra Bruce (a/k/a the Lawyer Coach) has an article at Law.com: “From Associate to Solo — Don’t Overestimate Your Value.” She discusses how young lawyers tend to overlook many of the expenses, both in money and time, associated with being a young lawyer. I can certainly relate to that. Law practice, as it turns out, is not necessarily the quick road to riches that it may seem to be.

You may dream of being your own boss, running a lean and mean shop with a lot less overhead than your current organization. With the technological advances of the last few years, that is undoubtedly an option. Just don’t underestimate the three crucial responsibilities in the success of any law practice: client development, collection of fees and taking out the trash.

Well, you may not really have to take out the trash, but you will have a lot of administrative duties that hinder your ability to rack up billable hours. Almost all businesses wind up writing off some accounts receivable, and for most lawyers, it takes a lot longer to bring in new clients than they expected.

I don’t want this article to dash your hopes and your belief in yourself. I want it to encourage you to do some realistic assessment and planning so that you don’t end up dashed on the rocks.

It is by now well-known that I have soured somewhat on being my own boss. There has been a steep learning curve in the realm of running a law practice, something law schools tend not to teach. Those” administrative duties” in the above quote certainly do pile up. Every profession has its unique expenses. Law has insurance, continuing legal education, and all sorts of other ethical compliance issues. Marketing is particularly tricky for lawyers, who cannot afford to leave their marketing in the hands of a non-lawyer. New York attorney Eric Turkewitz coined the term “outsourcing marketing = outsourcing ethics,” meaning lawyers have such a convoluted code of ethical requirements surrounding our advertising that we can ill afford to leave it to someone not intimately familiar with those rules (bad things have happened when marketing is left to non-lawyers).

Then there is client development. Clients will not just come to you because they need a lawyer and you are awesome. Client development is complicated, and unless you have an immediate family member with a corner office on K Street, it will not happen overnight. What’s more, the market is saturated with new lawyers. You will need to start getting creative, and that does not automatically mean going high-tech.

I started my firm in 2002 with two other lawyers. They had experience from law school doing criminal defense. I had some immigration experience and had worked for a civil litigation firm, so the plan was for them to build criminal practices and for me to develop civil clients. This was before “blog” was a household word, when most computers still had floppy disk drives. So we did our marketing the old-fashioned way: direct mail. Every day, we would get the jail roster from the Travis County Sheriff, develop a mailing list, and print, sign, stuff, seal, and stamp several hundred letters to prospective clients.

It’s not as crazy as it sounds. Not everyone has regular internet access, even today, relying on the mail. We stopped doing it for two reasons: (1) stuffing 250-300 envelopes per day sucks, and we didn’t want to hire staff just yet; and (2) more and more lawyers were sending letters and the rate of return was plummeting. Anecdotally, I heard that in 2002 about 20-25 lawyers in town were sending letters, but by 2004 there were almost 75. Now, everyone is so internet-focused, perhaps snail mail could have a Renaissance. Many people respond quite well to receiving a personalized piece of mail.

via poofytoo.tumblr.com

Don’t even get me started on collecting fees. I’d compare it to herding cats, but all a cat can do is scratch you.

Personally, I think it is great whenever a young lawyer wants to go solo. The number of resources to assist a new solo grows every day (resources I wish existed, or that I’d known of, back in the day). It’s scary, but it can also be rewarding. What it definitely is not, is easy.

I’m still going with the perceptual vigilance theory. The latest is that Thomas M. Cooley Law School of Lansing, Michigan is suing a New York law firm and four anonymous bloggers for…..

wait for it……

…..defamation, for saying mean things about the school online (and, in the case of the law firm, for posting Craigslist ads re: a potential class action lawsuit against the school similar to the one filed against Thomas Jefferson School of Law earlier this year).

In one lawsuit, Thomas M. Cooley Law School, located in Lansing, Michigan, claims that it has been the victim of ads on Craigslist and Facebook – posted by attorneys at Kurzon Strauss LLP – seeking former Cooley law students to join in on a potential class action suit against the school. (Click here for an example.)

One of Cooley’s concerns with Kurzon Strauss’ online postings regard the school’s student loan default rate, James Thelen, the school’s general counsel, told the Law Blog.

For instance, the law firm allegedly claimed that there were reports of Cooley law grads “defaulting on loans at an astounding 41 percent” in various online posts, according to the papers filed by the school. Thelen claims the actual rate is 2.2 percent.

In the second lawsuit, also filed Thursday, the school claims that four “John Doe” defendants have been blogging and perpetuating online comments damaging to the school’s reputation, Thelen said to the Law Blog.

No matter what, I hope campuses will always have cute squirrels

Golly.

First off, I cannot think of a better way for a law school to take a relatively minor and obscure series of comments and complaints (in the form of the bloggers) and make it into something that could be known nationwide (cf. Streisand Effect). The scambloggers are going to have a field day with this. Let the battle begin…..

Second, in a lawsuit claiming damage to a law school’s reputation as a premier educational institution, the law school’s choices so far have been interesting, as Elie Mystal reports:

So far, the most damning statement about Cooley’s education has come from Cooley itself. Cooley president Don LeDuc said that the school filed these suits: “to protect Cooley’s reputation and stand up for our students and more than 15,000 graduates.”

And yet, of those 15,000 graduates, when it came time to defend Cooley’s reputation, the school went with lawyers who were not educated at Cooley.

Not only did the school not use its own graduates for this work, one of the anonymous commenters the school is suing appears to be a recent Cooley graduate. I mean, with friends like these, right?

Third, and I’m just brainstorming here, but isn’t it inevitable that a law firm, in seeking members for a class action, would say things about the potential defendant that would be construed as less than nice? Here’s an example of a firm seeking class members. And here’s what Kurzon Strauss posted to Craigslist re: Cooley:

My firm is currently conducting a broad, wide-ranging investigation of a number of law schools for purportedly manipulating their post-graduate employment data and salary information. Among the many schools we are investigating is the Thomas M. Cooley Law School which claims that 76 percent of its graduates have allegedly secured employment within nine months of graduation.

Finally, let me note the irony (if that is even the correct word) of a law school suing a law firm for defamation because the law firm is seeking plaintiffs for a class action fraud suit against the school. Cooley has to prove that the allegedly defamatory statements made by the law firm are not true, which is similar to the position Cooley would be in if the fraud case were to go forward (although the burden of proof would be on the other side there). Depending on procedural rules in Michigan, Cooley may have just opened itself up to discovery into all of its various claims regarding, say, employment statistics for its graduates.

The law school issued its own statement the day the suit was filed:

The Thomas M. Cooley Law School filed two lawsuits today to protect the reputation of the school and its students and alumni from defamatory Internet attacks. In the two actions, the law school asserts defamation and other legal claims against a New York City law firm, two lawyers in that firm, and four anonymous Internet bloggers.

“With ethics and professionalism at the core of our law school’s values, we cannot – and will not – sit back and let anyone circulate defamatory statements about Cooley or the choices our students and alumni made to seek their law degree here,” said Brent Danielson, Chair of Cooley’s Board of Directors and a retired District Court Judge.

[snip]

“Cooley has consistently and truthfully reported job placement and salary figures in the manner required by the American Bar Association (ABA), our accrediting agency, and by the National Association for Law Placement (NALP), a national jobs-reporting clearinghouse,” said Charles Toy, associate dean of Career and Professional Development at Cooley and the immediate past president of the State Bar of Michigan.

Consistent with all 201 ABA accredited law schools, Cooley’s job placement rates are reported annually to the ABA and NALP nine months after graduation based upon the results of graduate surveys in full compliance with the reporting methodology required by those agencies. Cooley’s reported job placement rates have ranged from the current 76 percent up to 82 percent in 2006, with a similar range reported back to 2000.

“Everyone has the right to state an opinion about Cooley, online or elsewhere,” said James B. Thelen, Esq., Cooley’s associate dean for legal affairs and general counsel. “But our lawsuits contend that these defendants have crossed the line both legally and ethically, -
smearing our reputation with blatantly false and often vulgar statements that they attempt to spread as broadly as possible.”

[more at the above link]

The complaints against the law firm and the anonymous bloggers are posted on Cooley’s website, where they will apparently be posting updates on the case. Between this and the Thomas Jefferson class action, it will be interesting to see how each side of this whole kerfuffle presents its case. Time for everyone to put up or shut up. Grab some popcorn (if you can afford some after making this month’s student loan payment, of course.)

Of course, these are all just the opinions of one guy with an interest in defamation law. Please, Cooley, don’t sue me.

For those living under rocks or in soundproof chambers, here’s a review of a few legal events of the past few weeks (trigger warning for sexual assault issues):

• Now-former IMF head Dominique Strauss-Kahn, accused of and indicted for sexual assault, has been released from house arrest, and prosecutors are considering dropping the charges, due to problems with the case related to the accuser’s credibility.
• Casey Anthony, mother of deceased 2 year-old Caylee Anthony, has been acquitted of Caylee’s murder but convicted of lying to police.
• Jamie Leigh Jones, a Texas woman who alleges she was drugged and raped by a fellow KBR employee while she worked as a contractor in Iraq and then imprisoned by her employer, lost her civil claim against KBR (also at least partly due to credibility issues).

Here we have three cases that strike incredibly sensitive nerves. One involves the murder of a child, and two involve rape. In all cases, the alleged aggressor seems to have prevailed. But the results of these legal proceedings do not mean that DSK’s accuser was not raped, that Casey Anthony is not a murderer, or that Jamie Leigh Jones was not raped and imprisoned in a shipping container. Prosecutors in New York may no longer feel that they could win a prosecution against DSK with the evidence they have, making it not worth the colossal expense of continuing the case. Florida prosecutors did not prove beyond a reasonable doubt that Casey Anthony murdered her daughter. A jury did not find a preponderance of evidence to support Jamie Leigh Jones’ case. In the last two cases, these were the conclusions of lawfully empaneled juries. We may not like the results. The results may make us sick to our stomachs. What is important, though, is that the system appears to have worked the way it is supposed to.

True, the victims did not get “justice” in these cases, but that is not the point of judicial proceedings. Alan Dershowitz wrote in response to the Anthony trial:

‘This case [is] about seeking justice for Caylee . . .” So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Even if it is “likely” or “probable” that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

If we try to go outside of the system of trial by jury, we become no better than an angry mob. A proposal of sorts has already appeared based on frustration over the Anthony verdict:

[Senate Minority Leader Mitch] McConnell drew a lesson Sunday from that case in connection with the debate in Washington over whether to try suspected terrorists in federal courts.

“These are not American citizens. We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court,” McConnell told “Fox News Sunday.” “I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.”

McConnell is only correct if the whole purpose of a trial is to secure a conviction. I don’t particularly want to get into the issue of terrorism trials here, but the apoplectic reactions to the combined acquittal/conviction of Ahmed Ghailani for the 1998 U.S. embassy bombings certainly show that for many, there is no point to having a trial if a conviction is not guaranteed.

In a civil case like Jamie Leigh Jones’, “justice” is more of a clear goal. Rather than proof “beyond a reasonable doubt,” a civil claimant need only show a “preponderance of the evidence,” meaning a 51% or more likelihood that their claims are true. Again, failure to convince a jury does not automatically mean the claims are false. It means that the evidence is lacking to allow for a legal remedy or punishment.

It is the responsibility of the plaintiff and the plaintiff’s attorney in a civil matter, and of the prosecutor in a criminal matter, to meet these burdens of proof. It is the responsibility of the judge to make sure the jury only hears relevant, probative evidence that does not unfairly prejudice one party or the other. The system is not perfect, but again, it is preferable to an angry mob.

There is no requirement that we like the outcomes of these cases. There is also no guarantee of justice in this world. There is, however, a system that has been in place for centuries that is imperfect, often inefficient, frequently infuriating, and the best protection we all have against even greater injustices than the occasional acquittal or dismissal. That is our system of trial by jury. To quote Voltaire, “It is better to risk sparing a guilty person than to condemn an innocent one.”

“R v. I” is just my shorthand for Rakofsky v. the Internet, in case you were wondering. As I’ve said before, others have addressed this case with much greater wisdom than I, but a few notable events have appeared on my radar.

1. “Rakofsky Effect” has made it into Urban Dictionary:

Infinite pleading amendments as the unintended consequence of suing to censor your critics.

This term is in reference to Rakofsky v. The Internet, a defamation suit filed by Joseph Rakofsky against approximately 80 defendants, including The Washington Post Company, screen names, email addresses, and various esteemed lawyers who publicly on their websites condemned Joseph Rakofsky for bringing shame upon the practice of criminal defense and the legal profession. As the story caught fire across the blogosphere, plaintiff Rakofsky continually amended the suit, adding new defendants seemingly every time a new individual on the internet spoke critically of him, which only prompted wider criticism, thus creating a self-perpetuating cycle.

This lemur has nothing to do with the case I am discussing. He's just cute.

There’s also a Twitter account I hadn’t noticed before.

2. This may be completely unrelated, it may be completed related, or it may be some strange meta-narrative on the whole strange saga of young Rakofsky. On June 30, an ad appeared on New York Craigslist looking for a lawyer to handle a large defamation case, offering $200/week plus $150 per court appearance (this has since been changed to “Compensation to be negotiated”). First, Joe DePaola tweeted about it, and Ryan at Absurd Results blogged about it. Then my fellow defendant George M. Wallace made note of it in his weekly update on the case.

The ad is a bit long to quote at length, so I have a couple of screenshots for your enjoyment.

The ad does not identify the person(s) seeking an attorney. It could be you-know-who, or it could be another New York litigant suing a large group of defendants for defamation. One thing is clear, though: this seems a singularly poor method of finding an attorney. Fellow defendant Scott Greenfield said it best:

As enticing as this offer might seem at first blush, it reflects a problem.  Could it be possible that the reason that the litigant who found it necessary to solicit a lawyer blind on the internet can’t find a lawyer otherwise?  Lawyers are a dime a dozen, taking on dubious causes all the time if there is even the slightest hint of making a buck somewhere down the road.  Why, then, does the person who has carefully crafted his requirements for his lawyer found it necessary to go to the virtual street and solicit for anyone, anyone at all, willing to take him on?

What if the ad-placer went from lawyer to lawyer, knowing a few who could be asked to fill the shoes he feels are so vital to his cause, and was told that despite their hunger and desperation, their willingness to take on pretty much any case that held any potential to make a buck, they would not take his?  This would seem to be as clear a message that his cause was not just, not right, a horrible loser.

Who is this mysterious seeker of legal services? We may never know for sure, but his/her case seems to parallel one that is familiar to me. I will say this: we have a lot of lawyers in America right now. Some are quite good, some are not quite so good, and all of them probably need more than $200 per week to really focus attention on a case.

I’m going to withhold most comment on this matter, at least for now, but the latest complaint is online.

If you’re interested, I am mentioned in paragraphs 59, 60, and 182. There’s not much I can say about this that hasn’t already been said by greater bloggers than me. The case, dubbed Rakofsky v. the Internet, has spawned quite the internet storm (which I have to assume was not Mr. Rakofsky’s intention–171,000 Google search results as of June 29, 2011.) Mark Bennett has been keeping a compendium of posts about the case and its intriguing twists and turns. Eric Turkewitz, who is representing a group of defendants with First Amendment lawyer Marc Randazza, is providing ongoing updates at his blog (and they are often hilarious).

I therefore offer no commentary nor any further opinions on this matter at this time. All I can say is that I was quite surprised when I learned of this case and my involvement in it. I will say that this should be a fascinating foray into the intersection of the internet, the first amendment, and theories of defamation law. Keep watching, dear reader(s).