Joseph Rakofsky and Matthew H. Goldsmith: When “Keeping It Real” Goes Wrong

You may remember Joseph Rakofsky. In 2011, a D.C. Superior Court said his trial “performance was not up to par under any reasonable standard of competence under the Sixth Amendment” while defending a man accused of murder, and declared a mistrial. This was particularly notable because it was Rakofsky’s first trial. Not just his first murder trial, but his first trial. The court also had ethical concerns about an email Rakofsky wrote to a private investigator instructing him to “trick” a witness. Rakofsky’s blunders were picked up and written about by the Washington Post.

The legal blogosphere was intrigued. What kind of young lawyer would take on a murder case as their first trial? Soon they would find out.

Amazingly, it turns out Rakofsky had declared a personal victory in the trial on his Facebook page:

The legal blogosphere did some more investigating and found it got worse. Much worse. Despite being licensed for only a very short period of time and in New Jersey only, Rakofsky held out that he had offices in New York, New Jersey, Washington D.C., and Connecticut. His letterhead even listed offices where he is not licensed to practice.

Rakofsky described his law firm:

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

Not only is Rakofsky unlicensed to practice in New York, but that is pretty ambitious for someone who had been licensed for such a short period of time. It seemed like at every turn, the story got worse and worse.

At this point, Rakofsky had a choice to make. He could take his licks and learn from it, and move on with some hard earned experience and perhaps a little humility.

He could have done that, but instead Joseph Rakofsky decided to keep it real.

First, Rakofsky sued 78 defendants in a New York state court in a suit aptly dubbed “Rakofsky v. The Internet.” Then when bloggers blogged about his SLAPP suit, he decided to add them in by filing an Amended Complaint. Rakofsky’s Amended Complaint weighed in at 82 pages with 218 paragraphs.

What, exactly, is the theory of Rakofsky’s defamation case?

• There was no “mistrial” – the judge slandered Rakofsky from the bench after he voluntarily withdrew from the case due to a conflict with his client. Not only is this downright silly (and an outright lie), it’s also contradicted by Rakofsky’s own Facebook page declaring “MISTRIAL!”. It’s further, shall we say, problamatic because the judge said he granted a motion for a new trial based on Rakofsky’s incompetence three times:
  

  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.

  So I am going to grant Mr. Deaner’s request for new counsel. 

  …

  Alternatively, I would find that they are based on my observation of the conduct of the t al manifest necessity. I believe that the performance was below what any reasonable person could expect in a murder trial.

  So I’m going to grant the motion for new 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.

• Why would the judge say such mean things about Rakofsky on the record? According to Rakofsky:
  

  [Judge Jackson’s] anger may have been prompted by the diligence and zeal with which Mr. Rakofsky conducted his defense in the interest of the client as much as anything else, rather than any shortcoming in defense counsels’ knowledge of court procedure. (p.16)

  Rakofsky contends that the Judge was embarassed he was “out-thought by a first-time trial lawyer who just graduated from law school and was just sworn in. What might a judge do in those circumstances? Perhaps what Judge Jackson did.” P. 67.”[Rakofsky] was guilty, if of anything, of over-competence, as Judge Jackson discovered and, having discovered it, sought to take him down.” (p. 52)

• Rakofsky also claims he didn’t write an email asking a private investigator to “trick” a witness, at one point even calling it a forgery (P. 23, 26 of Rakofsky Affidavit), but later admits in the same affidavit that he authored the “trick email” but now contends it was taken out of context. (P. 42, 44 of Rakofsky Affidavit). So he didn’t write that email, but he did.

Okay…

So what do you do with such terrible facts, contradicted by your own words and a trial transcript?

Simple. You demand $5000 from each defendant, otherwise Rakofsky will keep it real.

When that cunning plan failed, keep it real he did. During the litigation, Rakofsky:

• Opposed the bloggers’ defense attorney Marc Randazza‘s pro hac vici motion (you must read Rakofsky’s opposition), on grounds that Marc violated the ABA Model Rules by using the word “fuck” in a telephone call. (rules that, you know, don’t even apply in a New York state court. Or any court for that matter.)
• Asked the court for a stay of the proceedings, which he then violated by trying to file papers that were ultimately rejected as “incomprehensible.“
• Appealed the decision not to let Rakofsky violate the stay he requested in the first place.
• Appealed the decision to admit Randazza pro hac vici. (P. 57)
• At one point, Rakofsky’s New Jersey law license (the only place where he is licensed to practice) lapsed, meaning he was not eligible to practice anywhere in the country. However, Rakofsky continued to sign documents using “Esq.” He remained ineligible to practice law from September 20, 2011 through April 30, 2012, all while denying his ineligibility to practice in court pleadings. (p. 14-15). Whoops?
• Alleged theories of negligence, intentional infliction of emotional distress, and civil rights violations to try and get around the elements of defamation. (“I don’t like what they said about me.”)
• Even alleged a theory that doesn’t exist – “internet mobbing.”
• Supported the “internet mobbing” theory by submitting an affidavit from a purported “computer expert” in HTML, who refers to HTML as “hyper treading multi language” (HTML actually means “HyperText Markup Language”), along with unfounded allegations of child pornography. (Don’t worry, the link doesn’t go to child pornography in any way shape, or form. It goes to one of many photoshops of Rakofsky the internet has made, which he calls “child pornography” because they make him sad.)
• Tried to alter a sworn statement before a referee, who promptly made him white it out and change it back.
• Refused to withdraw claims against the website http://www.bannination.com, who is indisputably not liable for the comments of its users under section 230 of the Communications Decency Act.
• Moved to amend his complaint again to a staggering 300 pages and 1200 paragraphs.
• Signed most of the pleadings “Written by: Joseph Rakofsky” and then Goldsmith affixed his signature to them.
• Tried to add Google and TechDirt as parties, sanction his former lawyer, and asked the court to refer all the defendants to the New York attorney disciplinary board.

This suit has lingered on the docket for almost two years and there has never been a determination on the merits. Rakofsky now wants to amend his complaint a second time, further delaying the court from making a decision. Endless amendments to avoid ever having to determine the case on the merits, while making your opponent spend money and waste time, has come to be known as “The Rakofsky Effect.”

Fairly recently, Rakofsky decided to retain counsel, Matthew H. Goldsmith of “Goldsmith & Associates, PLLC.” Did Goldsmith tell him this is a bad idea? That maybe he should back down, and reconsider his course?

Would the it all stop?

No. Goldsmith and Rakofsky decided to keep it real. Goldsmith showed up to oral argument and actually argued Rakofsky’s case before the judge. This is what the court said about Rakofsky’s claims (click to make it bigger):

(Entire transcript found here)

The court in no uncertain terms asked them to withdraw the silly lawsuit, otherwise there could be consequences. And not just consequences with the court in the form of sanctions, but additional scrutiny from “other agencies.”

Keep in mind that the judge has not even addressed any other Rakofsky’s other shenanigans. Yet…

So at that point, was it time to turn around and retreat? Learn his lesson and move on?

No. Rakofsky and Goldsmith couldn’t do that. They were determined to keep it real.

On July 1, 2012, Rakofsky (not his lawyer, Matthew Goldsmith) wrote Justice Hagler a letter explaining why the Justice is wrong:

View this document on Scribd

But this is where keeping it real goes wrong.

The American Bar Association has moved for sanctions against both Rakofsky and his attorney, Matthew H. Goldsmith to the tune of $30,000.00. Marc Randazza’s group has also moved for sanctions to the tune of $94,000.00. I suspect most of the other defendants will do the same.

Goldsmith filed a reply (actually signed by Goldsmith and not “written by Joseph Rakofsky”) that argues it wasn’t filed “in bad faith” and the defendants are asking for too heavy a demand in sanctions.

Today, Joseph Rakofsky and his lawyer Matthew H. Goldsmith are looking at hundreds and thousands of dollars in sanctions and legal fees, in addition to scrutiny from “other agencies.” All of the blog posts about Rakofsky remain on the internet, and more have been written since he filed this frivolous lawsuit and continued to maintain it. The court may also decide to scrutinize Rakofsky’s other shenanigans a little more closely.

It’s as real as it can be.

Joseph Rakofsky and Matthew Goldsmith, formerly young lawyers with careers ahead of them. Today sparkling examples of when keeping it real goes wrong.