Posts Tagged ‘Solo practice’
As I attend the South by Southwest Interactive Festival this week, I suppose one could say my transition from a law-focused career to a writing-focused career is turning a corner or something. I’ll have to work on that sales pitch a bit more.
It got me thinking about anything I might have to offer young lawyers trying to do what I did over the past decade, and a few tweeting colleagues helped me realize the biggest piece of advice I could possibly give: get a freaking mentor.
If you are a young, newbie lawyer condemned by the economy to solo practice, get a mentor. Stop whatever you are doing, I don’t care if it’s cooking breakfast, driving down the interstate, or even getting some. Just stop, ponder the type of law you are trying to practice, and find a mentor. A Twitter exchange yesterday between veteran lawyer Antonin Pribetic and newbie Stephanie Toronto encompasses the importance of mentoring. (Of course I had to respond too, and that inspired this post).
As a second, somewhat-related piece of advice, I’d say this: don’t obsess over technology. Gadgets are awesome, but technology changes constantly and the practice of law changes pretty much never. Young lawyers, myself included, can get hung up on having the most-efficient doo-dads. Read Scott Greenfield’s post about the dangers of tech innovation in a law practice, especially when you deal with serious legal matters like criminal or family law, where the cost of an inconvenient computer crash could mean someone goes to prison or loses custody of their children. Sometimes taking notes on a legal pad makes sense, is what I’m saying.
I did not have anything resembling a mentor for years after I started practicing, and it showed. In my first year, I left the courthouse almost in tears on multiple occasions (at least I waited until I got to the car, most of the time) out of a sense of shame, embarrassment, or just plain ol’ fear. Fear because I never quite knew what to expect when I walked into a courtroom. Of course there is always uncertainty when you go into court, but I mean I sometimes literally had no idea what was going to happen. That was bad for me psychologically, but it was potentially far, far worse for my clients. I was doing family law, and my then-law partners’ criminal practice had several assault with family violence cases that led to divorces. These were not simple cases. They were highly emotional and combative, with every conceivable issue that could be disputed in dispute. Luck was an enormous factor in warding off disaster.
I went to CLE seminars on divorce, and I took advantage of the list of more-experienced lawyers who had agreed to offer their wisdom to us upstarts. I always called them with a strange sense of fear or shame, as if I was exposing too much of my ignorance by admitting there was something I did not know. I have no idea where that notion came from but it is (and let me be clear) utter, complete, and highly destructive bullshit. Of course you don’t know what you’re doing – you just started doing it!
The only people who expect a brand new lawyer to perform perfectly in court are clients, judges, and juries.
And they are the only people whose opinions matter at the end of the day.
So how do you find a mentor? Again, I was never very good at it, but here are a few tips anyway:
1. The courthouse. If you’re there all the time, try talking to other lawyers there. You might get blown off a lot, but you never know who you might meet.
2. Local bar associations. Many cities and towns have their own lawyer organizations that offer opportunities for CLE, networking, and even mentoring. Some even have official mentoring programs.
3. Actually, that’s a long enough list for now.
Where should you not go to find a mentor? A few places spring to mind:
3. Bus stops
4. Bars frequented by college students
As a final note, if you are in court, arguing an objection, and you suddenly realize that you just recited nearly-verbatim an objection you heard Jack McCoy make on “Law and Order,” it is time to get a mentor. Or a new career. Up to you.
UPDATED (03/23/2012): Corrected an unfortunate spelling error.
Rachel Rodgers, the self-proclaimed 21st-Century Lawyer for Generation Y Entrepreneurs, has put out a “21st Century Lawyer Manifesto.” It proclaims a new ethic, or aesthetic, or something, for the newest generation of lawyers. I think this mostly includes the ones who came of lawyering age in the era of social media and no longer reasonably expecting to have a high-paid legal job upon graduation. The manifesto has 9+ elements (the “+” will be clear soon enough):
- We are a diverse group of people that come in all shapes, sizes, t-shirts and tattoos.
- We embrace our weirdness.
- We will not let being lawyers prevent us from being business savvy.
- We will not let our past with tradition rob us of a future with innovation.
- We will utilize technology in all of its glorious forms.
- We value actual morality over “ethics” rules.
- We understand that the true value of money is determined by what it costs us to make it.
- We will not live in fear.
- We recognize our duty to do epic sh*t now.
- [You tell me.]
See, #10 is a fill-in-the-blank. It’s a partly-DIY manifesto, making the whole thing delightfully (or obnoxiously, depending on your point of view) meta.
It’s worth reading the whole thing to get the nuance of each element. Overall, I absolutely support utilizing new technologies, rethinking some concepts of “ethics,” and generally shaking up the legal profession. I have no doubt that there will be vehement and altogether predictable retorts from certain lawyers about how unrealistic and irresponsible these newbie lawyers are being.
I see several problems with this manifesto.
For starters, I’m all about being “weird,” but not about being “weird” for weirdness’ sake. Maybe I’ve got that item on the list all wrong, but as lawyers we have a job to do and a broader legal system to represent. While the current system seriously eschews outside-the-box thinking in favor of a rather lockstep approach, that did not happen overnight. In truth, most outside-the-box ideas suck (cf. Sturgeon’s Law). As lawyers, for many of our clients, the stakes are quite high (livelihood, custody of children, liberty, etc.) Clients need to know that we are either using methods that are time-tested, tried, and true, or that we have worked out these new techniques and have the utmost professional faith that they will work. Otherwise, the hypothetical outside-the-box legal tactic doesn’t work, the client gets angry at the lawyer, the lawyer gets sued for malpractice and/or gets dragged before the state bar, CLE presenters use that lawyer as an example of what not to do, and everything goes right back to the way it was before. Being “business savvy” does not always equal being an effective advocate.
For another thing (and I’m not sure whose problem this is) is that replacing the current ethical regime with a broader concept of “morality” sounds awesome on paper. Try it in a contentious divorce case where one spouse wants a peaceful split and hires a newfangled “moral” attorney while the other spouse borrows $25K from a family member and hires the sharp-fanged divorce lawyer who keeps opposing parties’ extremities as trophies. I’ve dealt with divorce lawyers who, while they may be wonderful people with their families at Thanksgiving dinner, seem constitutionally incapable of even recognizing opportunities to peaceably resolve legal disputes. Decades in the nastiest divorce trenches will do that to a person. Long periods of time hearing about the worst of the worst divorce cases can sometimes make judges pretty cynical too. Not all divorce lawyers and family court judges are like this, of course, but a lawyer seeking to inject a bit of “morality” into the process should expect to get chewed up and spit back out, minus a few extremities, more than a few times.
The biggest threat to any kinder, gentler model of lawyering, then, comes not only from other lawyers who don’t subscribe to that ideology, but also from these lawyers’ own clients. Most people don’t have a clear understanding of how the legal system works (I blame lawyer TV shows). The system may be the best one conceived by humanity to resolve disputes, but it quite often sucks. It is inefficient, often unfair, and often mind-bogglingly counter-intuitive. Clients expect justice, and they do not always understand how difficult (and expensive) true justice is to achieve. Many lawyers go for the illusion of justice through aggressive litigation, and that has become the standard model. Do not think for a second that this type of lawyer would hesitate to pounce on a newly-moral lawyer for any advantage available.
Are these reasons not to try to change the legal profession in ways that would quite possible make it fairer, more “moral,” and a more enjoyable (or at least less soul-crushing) way to make a living? Of course not. These are noble goals. The thing that “21st Century Lawyers” of the Rodgers model need to understand is that the early adopters of this model may end up martyrs to the cause. Good luck to them.
Remember that generational clash among lawyers? It’s here. The front line combatant in this conflict is Gregory Berry, a New York attorney who until recently worked as an associate at Kasowitz Benson Torres & Friedman. Apparently he made a few whistleblower-type complaints and engaged in some self-aggrandizement within the firm, and now is no longer employed there, according to Reuters and a lawsuit Berry filed:
Gregory Berry, a former first-year associate at Kasowitz Benson Torres & Friedman, accused the firm of unethical behavior and lying about its work culture in a lawsuit filed on Monday in Manhattan state Supreme Court.
Two partners are also named as defendants in the suit. Berry accuses them of interfering with his job, inflicting emotional distress and trying to thwart his career prospects.
Berry claims he “immediately began doing superlative work” when he started working at Kasowitz last September after attending law school at the University of Pennsylvania.
But he ran into trouble after a few months when he e-mailed partners asking for more responsibility, he said in the lawsuit.
“It has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing and a superior legal mind to most I have met,” his email said, according to his complaint.
He was informed by a partner at the firm that his email had “burned bridges” in the office, and he was fired a few days later, according to the lawsuit.
“There’s simply no room in a big law firm for an intelligent, creative lawyer with real-world experience, and I had to find that out the hard way,” Berry told Reuters.
In the lawsuit, he also said he was fired for comments he made about “possibly fraudulent” billing practices at the firm.
Is Berry out of his “superior legal mind”? Perhaps. Law school produces many innovative and creative legal minds. Big law firms, with their strict business models and general aversion to risk, stifle such innovation and creativity most of the time. I had never heard of Kasowitz before this morning, but a cursory review of the interwebz suggests they have a reputation as a “benevolent dictatorship.” Maybe Berry was fired for threatening to expose dirty secrets, maybe he was fired for having an ego, or maybe it was something else entirely. The truth may or may not come out in his lawsuit. The point is that we have a brand-new lawyer butting heads with his firm’s culture and getting the boot for one reason or another. Bring your own popcorn.
Now that he is free of the corporate yoke of BigLaw, he did what every young attorney who is too smart for the strictures of old-school legal culture should do: he started his own practice. And he did it with a bit of flair: his website states that:
[Berry] graduated from the University of Pennsylvania School of Law and began his legal career at the “big-law” firm of Kasowitz, Benson, Torres & Friedman, where he quickly discovered that the emphasis in “big-law” firms on generating billable hours rather than on applying creativity and intelligence to devising unorthodox and cutting-edge legal strategies left Mr. Berry wasting his talents. Mr. Berry became a lawyer to fight for justice and to use his powers for good. He started this law firm to lend his abilities to clients who need the highest legal talent possible.
Here is a screengrab of that page, in case he has to edit any statements contained therein. I look forward to seeing what “unorthodox and cutting-edge legal strategies” Berry develops in his new position. Just watch out for those pesky ethics rules–they’ll come at you from all over.
I for one welcome this opportunity for NewLaw (I now claim credit for coining that term, even if someone else has the website) to put itself up against BigLaw. The new versus the old.The small versus the big. The innovative versus the time-tested. Let the battle royale begin.
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.
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).
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.
The title of this post may be offensive to some. Especially to prostitutes. I got the idea from a post from The People’s Therapist, in which he compares practicing law at a big law firm to doing sex work.
Many of my big firm lawyer clients aren’t sure what they’re doing at the office or why they’re doing it. You keep showing up in the morning and keep leaving at night. Sometimes you aren’t doing much of anything. Other times you’re slaving away at a task you half-understand. People keep smiling and saying hello when they pass you in the hall – and that paycheck, the point of the exercise, keeps getting deposited in your bank account. As long as the firm keeps paying – heck, you’ll make phone calls, chase down research, prepare a closing table, do doc review…or whip quivering buttocks, dance on a pole, or murmur gentle exhortations while your toes are licked. What’s the difference? Who cares?
I’m not entirely sure if this is more a denigration of big firm lawyers or of sex workers, or of both equally, or of neither. I think the point is that big firm life is an unpleasant slog done almost exclusively for the money, with about as much emotional appeal as licking toes (unless you’re into that, of course). At first, his post put me in mind of my quasi-libertarian arguments on why much sex work shouldn’t be criminalized the way it currently is (a topic for another post later, perhaps), but then he went on to address the type of legal work he (presumably) respects.
It does raise an issue: Are there lawyers who aren’t prostitutes?
I never shook off a strong regret surrounding my legal career – that I never learned how to practice law. You know – real law. Like when your friend calls because his cousin got arrested for a DUI. I have no idea what to do with a DUI. I wasn’t even a litigator – I was on the corporate side. I wouldn’t know where to start.
Here are some other things I know next to nothing about, other than in some vague, theoretical bar exam sense:
How to file for divorce.
How to close on a house.
How to write a will.
How to handle the legal necessities of a small business.
At this point, if a friend rang up with any legal question short of how to prepare for the closing of a multi-million dollar merger – or proof a securities offering – my advice would be useless.
There are lawyers out there who are not proletarian sex workers, right? Lawyers not owned by the capitalists. Lawyers who possess the means of production (as Uncle Karl would say.) Lawyers who crawl out of bondage and ascend to the petite bourgeoisie. Lawyers who “hang a shingle” and do real law. Lawyers who work for themselves.
I have never worked for a big law firm, nor have I ever desired to do so. What I have done is nearly all the work listed above. I have filed (or defended) over a hundred divorces. I have closed on sales of houses, both as an attorney for a party and as an escrow agent. I have written a will. I have seen dozens of new businesses through their “legal necessities.” I am secure in the knowledge that my work over the past nine years has benefited real people, not just giant faceless corporations. I have made a difference, for good or ill, in the lives of hundreds of people (maybe more).
What’s the trade-off? Money, of course. A friend at a big firm was once telling me about a new, small case his firm has just started. I asked him what constituted “small” in his universe, and he told me that they expected about $100,000 in legal fees. That would have been a good two-year period for me at the time. Many of my law school classmates made upward of $120,000 in their first year of practice, while I earned the rough equivalent of minimum wage (since most revenue went to overhead).
At times I think there is no single legal profession, but rather those who practice for ordinary folks inhabiting the same earth as lawyers who practice some astronomically larger, yet infinitely less personal, form of law. There are also government attorneys, but they do not fit in my dichotomy so I will not mention them again. I do not even have a real concept of what these well-paid, overworked lawyers actually do during their 40+ billable hours per week. I encountered some confusion as to my daily routine from big firm colleagues as well. Courtroom time and “client contact” are like the proverbial pot of gold to many young big firm associates; I had both in droves within the first few months of my practice (and found them a mixed bag at best.)
I’m happy to know that I am not a prostitute (again, no offense intended to prostitutes by comparing them to lawyers). I’m also flattered to know that at least some big firm attorneys look at the sort of practice I have had with something that resembles admiration or even envy. I can honestly say that, aside from the big paycheck, I do not feel that I missed out on anything I wanted by choosing my path. Each lawyer has their own path to follow, and each path seems to lead to one of two worlds (or government).
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.
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 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).
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.
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.
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:
- Practicing outside of your primary geographic area;
- Handling a case that requires a large amount of time and attention; and
- Your very first big trial.
Hopefully I’ll make this into a series: Thoughts on Solo Lawyering.