Archive for the ‘Lawyering’ Category

Almost nine years ago, I embarked on an adventure. Starting my own law practice straight out of law school, knowing very little substantive law, knowing almost nothing about running a business, armed only with good credit and “fire in the belly,” it has been quite a ride. This was 2002, before most people had heard the word “blog,” when “dot-com” was still a dirty word, when the country was still clawing its way out of the post-9/11 recession, and when Democrats still held a few statewide offices in Texas.

A lot has changed since then. Technology has certainly advanced, but going solo is no longer quite the crazy move it once was. With the bad economy and the rather ridiculous surplus of new lawyers entering the stage every year, it’s getting awful crowded in my sky (h/t Malcolm Reynolds).

Quite frankly, the thrill of the law is not what it once was. The thrill of blogging about the law, or tweeting about it, is still there, but my heart and my passion seems to have moved on. So I’ve decided to leave the practice of law, at least for a while.

This is, of course, not the end for me and law. I’m keeping this website, and this blog. In fact, I intend to keep writing and hopefully entertaining my reader(s), but I have not had the particular drive to write informative, search-engine-optimized posts about collaborative law. I prefer to write about animal welfare, dogs, and my own peculiar theories on the business of law. Writing about my passions, and not writing the interesting-but-not-at-all controversial blog posts common to many law blogs, is what inspires me, so I look forward to feeling perhaps less constrained by industry convention. I was recently mentioned by a complete stranger as one of the few Austin lawyers making good use of social media for my practice. I enjoy the social media, but not so much the practice. It’s time for a new adventure.

I hope, in making this confession, that I do not lose the trust or respect of my reader(s). I have met many amazing people through my work over the past nine years, and none of you have heard the last of me.

A friend and colleague sent me a link to an article about adultery issues in divorce cases in Texas.  The article, from the Beal Law Firm in Dallas, Texas, addresses issues that rarely if ever come up in my cases, but that got me thinking about how much I value collaborative law and the collaborative process.

A good litigator will always look for the facts or legal principles that will best serve their clients’ interests.  At the same time, a litigator wants those facts or legal principles to negatively impact the opposing parties.  Litigation is usually a zero-sum game this way; if it helps my client, it probably hurts the other guy.  This is often why litigation is such a poor mechanism in many (not all) divorce matters.  These are not litigants in a business dispute or opposing sides of an auto accident.  These are people who are married, who once felt confident enough to stand up in front of their family and friends and recite vows.  When such a relationship ends, as many must, is it ideal to impose a zero-sum framework like litigation?  While it may be unavoidable in some cases, I would say no, it is not ideal.  The article begins with a thought that could apply to any financial dispute as easily (if not more easily) than a marriage:

When those clients [whose spouses have committed adultery] come in, the first question any creative attorney would ask himself is, “What can I do to gain an advantage and really give the other side something to lose?  You want something more than just the threat of a “disproportionate division” using adultery as a fault ground – that’s often not much of a threat.  “I’ve got it, there must be a Tort that will work,” you think.  Maybe there is.

The article goes on to describe various civil tort claims (claims for injury or negligence) that have been brought against a spouse who has committed adultery, or even against the person who was the other party to the adultery.  The gist of the article is that such claims are generally barred in the state of Texas, either by statute or by court ruling.

Make no mistake, it is not for anyone, let alone me, to discount the emotional (and perhaps financial) toll when a spouse has committed adultery.  Perhaps the lack of trust that would obviously result would make such a divorce a poor candidate for collaborative law.  What this article brings home for me is the type of situation in which the collaborative model would not work at all.

I would therefore add “significant distrust” to the list of situations in which litigation in a divorce is necessary. Elizabeth J. Kates, writing for Collaborative Lawyers, Inc., offers an excellent summary of the types of cases where collaborative just won’t work:

[T]here are cases for which collaborative law is not appropriate. These would include cases involving serious domestic violence or coercive control, elder abuse, child abuse, or mental illness. Additionally, if one party can intimidate the other because of matters other than the issues involved in the case, collaborative law would not be appropriate.

The key is deciding whether any of the above factors present a “point of no return,” where the risks inherent in pursuing litigation in something as personal as a divorce case are outweighed by the risks of trusting the other spouse or leaving oneself open to further abuse or duress by that spouse.  I suspect (without any real scientific backing, I realize) that cases where litigation is absolutely necessary are not the norm.

I therefore wish to respectfully disagree with at least one point of the above-quoted article: where the author argues that “any creative attorney” would first ask how to gain an advantage in a divorce case, I believe the first question should be whether looking for an advantage is even necessary.

I may a little late to the party commenting on Joseph Rakofsky, since it’s been two weeks since the story first broke in legal circles.  The story is worth noting, though, since I suspect it is something many lawyers who started out solo can understand–even if personal experience has not been as bitter.  To bring you up to speed, Mr. Rakofsky is a New Jersey attorney who had a murder trial in D.C. result in a mistrial for some unconventional reasons:

A Washington, D.C., judge declared a mistrial in a murder case Friday, saying he was “astonished” at the performance of the defense lawyer who confessed to jurors he’d never tried a case before.

Judge William Jackson said lawyer Joseph Rakofsky did not have a good grasp of legal procedures, citing as an example the attorney’s rambling opening statement in which he told of his inexperience, the Washington Post reports. Rakofsky graduated from Touro law school in 2009 and obtained a law license in New Jersey less than a year ago, the story says.

Rakofsky had repeated disagreements with his local D.C. counsel, causing his client, Dontrell Deaner, to become “visibly frustrated,” the Post says. On Friday, Deaner told the judge he wanted a new lawyer.

The judge declared a mistrial after reviewing a court filing in which an investigator had claimed Rakofsky fired him for refusing to carry out the lawyer’s emailed suggestion to “trick” a witness, the story says. Rakofsky’s suggestion allegedly read: “Thank you for your help. Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting.”

Based on the news coverage, it does not sound like there is very much this lawyer did right:

News of the mistrial spread throughout the courthouse as observers raced into Jackson’s third-floor courtroom Friday to watch the proceedings. The judge, now obviously angry and frustrated, told Rakofsky that his performance in the trial was “below what any reasonable person would expect in a murder trial.”

“There was not a good grasp of legal procedures of what was, and was not, allowed to be admitted in trial, to the detriment of Mr. Deaner,” Jackson told Rakofsky.

Jackson said the most evident sign of Rakofsky’s inexperience came during his rambling opening statements before the jury Wednesday, which lasted more than an hour, more than 30 minutes longer than most attorneys’ openings. During his opening statements, Rakofsky repeatedly made reference to children playing “in the projects of Southeast D.C., where there was always gambling, guns and drugs.”

“There are drugs in the projects of Southeast D.C. There are guns all the time and drugs,” Rakofsky told the jury.

The prosecutor repeatedly objected over the relevance of Rakofsky’s statements. Rakofsky said the “children” were a symbol of what his client had endured growing up in that neighborhood. Jackson told Rakofsky to focus on the case, especially because none of the “children” he referred to was scheduled to testify.

Later during his statement, Rakofsky informed the jury that the case was his first trial. The revelation shocked Jackson, the judge revealed at Friday’s hearing. “I was astonished someone would represent someone in a murder case who has never tried a case before,” the judge said.

Rakofsky did not speak during Friday’s hearing.

There are quite a few issues to unpack there. First off all, it is never okay for a lawyer to try to trick someone into making an untrue statement. It’s just a bad idea.

It also doesn’t help that, after a ruling that’s sure to be a PR disaster, the lawyer went online and bragged about it.  Probably not the best idea.  It’s also possible that he was his own sockpuppet on articles and blog posts talking about his case.

Others have already chronicled and cataloged many, many examples of this guy’s unusual public persona.  Military Underdog offers a good overview.

As more details about the story came out, it became clear that this was not just a story of a young lawyer who got in over his head.  This is also a story of a lawyer who blatantly broke ethical rules and promised more than he could deliver:

Henrietta Watson stood inside the downtown Manhattan courthouse waiting for one of her grandsons to be released from jail. A young lawyer approached and asked if he could help.

Watson and her husband declined. But the couple told the lawyer about another grandson in Washington, who was charged in the fatal shooting of a Virginia man. That case interested the lawyer, who gave Watson his card and introduced himself as Joseph Rakofsky, Watson said.

Watson, 71, said she told Rakofsky that she wasn’t interested in hiring him even for the murder case because the family couldn’t afford the $25,000 to $30,000 normally charged in such cases.

But Rakofsky, 33, called her, Watson said. And again. She said he told her that he had worked on criminal cases before. And he told her that he would charge $10,000. Watson decided to “give him a chance,” she said, impressed with his tenacity and his willingness to work on her grandson’s case, especially for such a low fee. The Watsons took out a loan, paid him $7,700 and agreed to pay the rest when the trial was over.

So here we have Joseph Rakofsky, the 33 year-old lawyer with barely two years experience from a not-terribly-highly-ranked law school, making a promise that was too good to be true to someone in a vulnerable position, getting himself into deep legal waters, winding up an industry punchline, and bragging about it all.  To which I say: it could have been any one of us (lawyers, I mean).

This is my blog.  I don’t really want to talk about Joseph Rakofsky; I want to talk about me.  Mr. Rakofsky’s case got me thinking about how I got started in law.  I started out part of a three-man shop, mostly practicing criminal defense, and I can definitely say that there are some very fine ethical lines out there.  I don’t defend any of the actions described in the coverage of Mr. Rakofsky, but I can’t quite bring myself to completely condemn the guy, maybe just because I’ve seen some similar stuff.

This case brings to mind several issues that troubled me in the early days of lawyering:

1. Practicing outside of your primary geographic area;
2. Handling a case that requires a large amount of time and attention; and
3. Your very first big trial.

Hopefully I’ll make this into a series: Thoughts on Solo Lawyering.

Lawyerist has a good post on the importance of nipping personality conflicts in the bud before they turn into something uglier.

Even if you make every effort to be a polite and civil attorney, the legal profession makes it easy to have combustible relationships with opposing counsel and even other attorneys in your office.

The next time you find yourself cursing your sworn enemy, douse the fire instead of fanning the flames.

Lawyerist offers two main pieces of advice: “Make an effort to get to know the person,” and “Tackle the conflict head on.” The key concept here is communication, something sadly lacking in the way most people, uh, communicate. With the zeitgeist favoring greater civility, perhaps now is the time to tackle the issue of communication head on.

By “communication,” I mean open and honest exchange of ideas, emotions, and desires. This is something that the family lawyer is very, very familiar with. In divorce, emotions are high, and as a result, communication is often low. It may be difficult to express one’s objectives in the face of blinding rage–that should be the time for the lawyer to help foster communication, not fan the angry flames. A lawyer cannot help a client if the lawyer does not know what the client wants, and the client cannot tell the lawyer what he or she wants if the client doesn’t really know.

By tackling the communication issue, a lawyer can help a client save quite a bit of time that might have been lost to ultimately fruitless fighting or litigating. A lawyer can help a client in a divorce pare down the issues to whatever is really important to the client. Divorce is messy, but it does not have to be a hostage to the emotions of the spouses. Communication can ensure a productive relationship between the lawyer and the client, and even between the divorcing spouses.

I’ll go ahead and do a little free viral marketing for the American Bar Association, in part because I probably can’t attend this particular webcast and hope someone will tell me how it is.  Next Tuesday, as part of the upliftingly-named ABA Recession Recovery Teleconference Series, they will be hosting a webcast entitled “Staying Positive in a Down Economy: Beyond the ‘Group Hug.’”

Any lawyer-related event that prominently features the term “group hug” has got to be worthy of support.

Did I mention it’s free to ABA members???