What’s the Worst that Could Happen? Joseph Rakofsky’s Cornucopia of Ethical Mishaps and Why NJ’s Bona Fide Office Rules Makes Sense

This is not Joseph Rakofsky

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Last year, young lawyers were told they shouldn’t be afraid of ethics. Experienced lawyers responded accordingly, explaining that such a cavalier attitude towards ethics is actually very dangerous for inexperienced practitioners.

Well, today Joseph Rakofsky serves as a real life cautionary tale of why young lawyers should in fact be scared of ethical rules. Very scared. Joseph Rakofsky’s cornucopia of ethical blunders reads like an issue spotting exam in Professional Responsibility.

For those of you who don’t remember, Joseph Rakofsky is a New Jersey lawyer who graduated law school in 2009 and came into notoriety early in his career. But not in a good way.

It all began with Joseph Rakofsky’s first trial, where he wisely agreed to defend a man accused of murder. Except it in real life, it didn’t didn’t end like My Cousin Vinny. The trial went very poorly and Rakofsky’s client asked for a new lawyer. Rakofsky moved for a mistrial, and the judge granted the motion, saying:

it was apparent to the Court that there was not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that iured, I think, to the detriment of [Rakofsky’s client]. And had there been – If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.  I would find that there are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable person could expect in a murder trial.

…

I believe that, based on my observations and, as I said, not just the fact that lead trial had not tried a case before; any case. It wasn’t his first murder trial, it was his first trial. As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.

So I’m going to grant the motion.

That’s not good.

But just how awful was it? I wasn’t there, but according to a juror named Randy who apparently was:

It was obvious from the opening statements that Mr Rakofsky was way out of his league and poorly trained for a proper court defense. Whatever momentary empathy any of us on the jury may have felt for Mr Rakofsky’s absolute ineptitude, were quickly absolved by our knowledge that a young man’s entire life was at stake. The absolute amateurish antics displayed by Mr Rakofsky were repulsive and oddly narcissistic. He had very little command of the law, and now hearing that Mr Deaner’s family actually hired him is truly upsetting. Most of us assumed that this was a court ordered public defender that may just have been too young and overwhelmed by a huge docket of cases to put together a proper defence.

The court also had concerns about an email Rakofsky wrote instructing an investigator to “trick” a witness. The court said the email raised “ethical issues” and that Rakofsky should talk to someone.

Ironically, Rakofsky had acted like the mistrial was a big professional victory on Facebook:

The Washington Post published a follow up story after the mistrial, reporting that Rakofsky refused to refund money paid to him for the trial. The Post also reported that the client’s mother, who paid Rakofsky’s fee, did not know her son’s case was Rakofsky’s first trial. “I was shocked. I told him he lied to me”, she said, according to the Washington Post.

Naturally, the legal blogosphere wanted to know more about Rakofsky’s practice. What they found was someone who grossly overinfliated his credentials to get clients.  In one example:

My name is Joseph Rakofsky, and I founded this firm on a commitment to set the standard for criminal defense in New York City. When you need an experienced attorney to make sure your rights are protected, no one will fight more aggressively on your behalf than we will. We have an extensive and intricate understanding of legal procedures and loopholes, as well as federal and state trial experience, especially in all areas of white collar crime including: * Embezzlement * Tax Evasion * Identity Theft * Securities & Bank Fraud * Grand Larceny * Drug Trafficking

This ad was particularly remarkable because Rakofsky is not licensed to practice in New York and he had never tried a case before the mistrial. It bears noting that a young lawyer was disciplined in South Carolina for a website that contained “material misrepresentations of fact and omissions of facts necessary to make the statements considered as a whole not materially misleading by mischaracterizing respondent’s legal skills and prior successes; falsely stating he handled matters in federal court; falsely stating he graduated from law school in 2005; and, listing approximately 50 practice areas in which he had little or no experience.”

Not surprisingly, the blogosphere criticized Rakofsky harshly for his actions.

Rather than learn from his many mishaps and admit he made some mistakes, Rakofsky doubled down and went from dumb to dumber. He turned around and sued just about everyone who criticized him in a silly SLAPP suit, filed in a state where he can’t get jurisdiction over most of the defendants. Rakfosky even sued the American Bar Association for good measure.

Due to the sheer scope and stupidity of it all, Scott Greenfield aptly named the lawsuit “Rakofsky v. The Internet“.

When bloggers criticized Rakofsky for filing the ill advised lawsuit, he decided to set his bad judgment to Ludicrous Speed and amended the complaint to add those critics, thereby creating what is now known as the “Rakofsky Effect.”

In the suit, Rakofsky alleges that his incompetence had nothing to do with the mistrial, but instead that the court dismissed the case because of a conflict between him and his client. As for the judge’s statements, Rakofsky claims the court slandered him from the bench, although he doesn’t name the judge in his lawsuit. Rakofsky speculates that the court’s anger may have been prompted by his “diligence and zeal” rather than any of his shortcomings, or, as Ken from Popehat put it, the court was angry that Rakofsky was just this awesome. Regarding the “trick” email, Rakofsky admits he “used an unfortunate choice of the word “trick’, but then goes on to assert that “no such email was ever written by Rakofsky.”

Hey! Stop laughing, this is actually the theory of Rakofsky’s case! I didn’t make it up.

But believe it or not, it gets worse for Joseph Rakofsky, as the New Jersey Supreme Court declared him ineligible to practice law on September 20, 2011. (Update: Rakofsky was declared eligible on April 30, 2012.)

Only Rakofsky didn’t hear about it.

According to Rakofsky’s latest set of papers in his suit against the internet, he asserts that:

Although these defendants are privileged to make statements that are rationally related to this controversy without incurring additional liabilities to me, such utterances are, nevertheless, admissible to demonstrate their subjective intent to inflict harm. In at least one instance, an attempt is made to raise doubts that I am actually authorized to practice law in New Jersey. (I am so authorized).

…

Further, attorney Teschner admits that I am “admitted to practice in New Jersey” … but then he asserts, without any explanation, that I am supposedly unauthorized to do so. This is utterly untrue, and it further besmirches my reputation for no reason. … I have not been found ineligible to practice law in New Jersey, in New York or any other jurisdiction.

There is just one little tiny, itsy bitsy problem with Rakofsky’s bold statements: they are false.

Whoops.

Rakofsky also complains that he did not receive Marc Randazza’s Motion to Dismiss, along with other documents related to the case. (which is a shame, because it’s one of the most well written legal documents I have ever read.)

But how does that happen? How does an attorney get declared ineligible to practice law and not know about it? How does an attorney fail to receive several important documents in litigation?

Well, what if the attorney doesn’t make it clear to people (such as adversaries or the state bar) where they get their mail…?

So where, exactly, does Joseph Rakofsky practice law?

After some investigation, it’s unclear.

Rakofsky signs his papers using the address 4400 Us 9 Freehold, NJ 07728. According to Rakofsky’s letterhead, he has an office in three different locations — New York, Washington D.C., and Freehold, New Jersey (although Rakofsky is not licensed to practice law in New York or Washington D.C.) All three of the offices listed on Rakofky’s letterhead are apparently maintained by Regus, a provider of virtual office services. None of the office locations on his letterhead reflect that they are “by appointment only.”

The New Jersey Supreme Court’s Ineligible List reflects Rakofsky’s address as 140 Hepburn Road, #19H in Clifton, NJ. However, Rakofsky’s settlement agreement with St. Thomas School of Law directs that the settlement check be sent to 67 Wall Street, Apt. 24G, New York, NY 10005, which is the same address where Rakofsky asked the Defendants to serve him with papers.

So that’s five addresses Rakofsky has used, three of which are possibly virtual offices, one of which may be his former apartment. But with so many potential addresses, where can Joseph Rakofsky be found during normal business hours? And why should anyone care?

Because according to Rule 5.5(c)(5) of New Jersey Rules of Professional Conduct, an attorney must maintain a “bona fide office”. R. 1:21-1(a) defines a bona fide office as:

a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time.

This rule stems from an earlier version, which used to mandate that that anyone practicing law in New Jersey had to maintain a bricks and mortar office within the state. However, the New Jersey Supreme Court later changed the rule, today requiring New Jersey lawyers to simply have a “bona fide” office located anywhere.

The Advisory Committee on Professional Ethics (ACPE) and Committee on Attorney Advertising (CAA) issued a joint advisory opinion (ACPE – 718 /CAA – 41) clarifying the bona fide office rule. The opinion essentially states that an attorney must list their bona fide office on their letterhead so that the courts, clients, and adversaries know where to locate the attorney during regular business hours. An attorney may list a virtual office on their letterhead, but it must say “by appointment only.”

It bears noting that a New Jersey attorney may designate their home as their bona fide office, provided it is the place where they can be reached during normal business hours. An attorney may not designate a virtual office as their bona fide office because it’s not where they are most of the time.

To put it another way, the Advisory Opinion suggests that it should be absolutely transparent to everyone where an attorney practices law.

The wisdom of this Rule is been discussed at length in the blogosphere. Last year, Brian Tannebaum and Carolyn Elefant engaged in an interesting debate about the merits of New Jersey’s bona fide office rule. Carolyn opposed New Jersey’s bona fide office rule, while Brian supported it. Both Carolyn and Brian made valid and compelling points.

I think that Rakkofsky’s mishaps demonstrate why this rule makes good sense. His gripes essentially stem from a failure to receive important documents. Which is exactly what the bona fide office rule is meant to do – make it clear to the court, adversaries, and clients where an attorney can be reached. You know how they say in football that when you have 2 quarterbacks, you have no quarterback? Well, perhaps sometimes when you have 5 offices, you have no office.

This is where it becomes a much bigger problem. I am going to assume that Rakofsky did not receive the Order declaring him ineligible when he attacked the defendants for correctly stating he is ineligible to practice in New Jersey, rather than knowingly making false statements to a court. However, the false statements could be construed as having been made recklessly because the information is readily available online were he to simply check the Notices to the Bar from time to time. (ProTip to young New Jersey lawyers reading this: check the Notices to the Bar from time to time).

In addition, although Rakofsky might not realize he is ineligible to practice law, it still could be prove to an ethical issue if he is unknowingly engaged in unauthorized practice. That would actually be a big problem, as New Jersey has disciplined lawyers in the past for practicing while ineligible. “I didn’t get the paperwork” will be a difficult defense because of the bona fide office rule, and my guess is the state bar would say an attorney has an obligation to update their address with them.

Rakofsky’s problems could have probably been avoided had he made it clear where he is most of the the time and where he receives his mail. Which he was supposed to do.

Call it a hunch, but I have a feeling this will not end well for Rakofsky…

[Update] Rakofsky was declared eligible to practice on April 30, 2012.