“Not Guilty”.

February 15, 2012
20120215-161449.jpg

Thank you, 4chan /b/.

For an accused on trial, there’s got to be a whirlwind of emotion.

I can only imagine the feeling, when after months of continuances and delays, the trial finally happens. You’re called to sit next to your attorney, and you sit and listen as the Commonwealth puts on its case.

You hear police testify against you and tell a story that paints you in the worst possible light.

You’re sitting next to your attorney as he cross-examines witnesses, probing the Commonwealth’s case for weaknesses. You try to get his attention as he argues, but he stops you so he can focus on what the witnesses say.

Finally, you hear him argue the facts and the law as best he can – why the Commonwealth hasn’t proven it’s case against you.

You hear him rest. The District Attorney then responds with his own version of facts and the law as he sees it. The DA rests.

The courtroom is silent for a few moments that must feel like an hour. Tension builds as you await the decision. And then out of the judge’s mouth comes the two words that mean your freedom:

“Not guilty”.

(For the defense attorney, it’s a dammed good feeling too).


Details Emerge in Shane Kelly Fishtown Murder; Ryan McManus Would Stab You Before He Shot You So He’s Not All That Bad According to His Friend

February 15, 2012

Broad Street Media is reporting that details have emerged in the Shane Kelly murder. At the preliminary hearing, Municipal Court Judge Teresa Carr Deni ordered defendants Ryan McManus and Richard Smith to stand trial for murder. According to the article, there was testimony that McManus ran into 713 Belgrade Street after the murder, which is a house that Fishtown residents have made many complaints about.

This case is obviously important to me, since Shane was murdered in my neighborhood. Shane was also a fellow brother in AOH.

It also goes to show the stupidity of some kids and Facebook, as apparently Ryan McManus was just very drunk, and the type of kid who would stab you before he shot you. I’m very relieved to hear that:

The courtroom was filled with friends of Shane Kelly and MaryElise Doyne.

We’ll keep you posted as the matter progresses.


Joseph Rakofsky vows to build your case with bricks of “truth, compassion, and love.”

February 15, 2012

Joseph Rakofsky is the gift that keeps on giving. This is too funny to believe;  you’ll have to see it for yourself. (it takes a second to load so keep your pants on). In this video, Joseph Rakofsky claims to build your case with bricks of “truth, compassion and love.”

Original version of his website found here.

Hopefully I don’t get sued for posting about this… I would just hate for that to happen, as our Terms of Service are pretty goddamn clear that Joseph Rakofsky and friends are not welcome here. We do not like litigious censorious asshats, and they will be prosecuted to the fullest extent the law allows.

But if you want to go down that road, Joseph, you know where to find me. (Hint: 2424 East York Street, Suite 316, Phila, PA 19125. Email: jordan[at]fishtownlaw.com).

At my bona fide office. You know, the place where my files are kept, the telephone is answered, mail is received and I 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 me can be obtained within a reasonable period of time.


Good bye to Scott Greenfield, Kind of…

February 14, 2012

Scott Greenfield, author of Simple Justice, has said goodbye to blogging, which is a travesty. I wasn’t going to do a post about it, but I changed my mind.

A year ago, I didn’t really know what legal blogging was. I thought it was just a sidebar on the side of websites where people wrote short articles to try and generate traffic to their website. In fact, I started buying into the happysphere stuff at one point because I didn’t know any better, and it was everywhere I looked.

Then I met Scott Greenfield, almost purely by chance. A throwback to “old school”, focused on bettering the legal profession and putting clients first.

Little did I know that are bloggers like Scott who write about stuff they care about instead of marketing. You know, stuff that actually matters. I learned more about the practice of law from reading Simple Justice than three years of law school.

Scott’s musings have shaped the way that I look at the profession, and I think for the better. Scott is also the guy who inspired me to start this blog, and to take it in the direction I did. Your daily commentary will be missed.


It Goes to Eleven: Self Fulfilling Prophecies Promulgated by Marketing Gurus

February 13, 2012

Today Brian Tannebaum wrote an article about the “Masters of Marketing”, who claim to offer “real-time tools, techniques and strategies to build an extraordinary law firm. The content ranges from how to build a winning culture, right through to how to integrate a successful online marketing campaign, through the smart use of blogs and social media tools. Learn what the leading rainmakers are doing today to drive exponential growth in difficult times. The Law Firm Marketing Masters series gives you over 7 hours of audio content, as well as the book with loads of other exclusive information and offers. This is Exceptional Real-Time Content.”

However, according to Brian, Adrian’s credentials are, to put it mildly, non-existant:

You remember Adrian? He was fired after 8 months as a lawyer, wrote a book on how lawyers can type on twitter, then admitted to me that he puffed his resume to sell himself, and now has convinced several, as he calls them “large law firms” to hire him to teach them how to blog and tweet, and game Google.

I recently spoke with a lawyer marketer about how the scum of the industry get in the door of respected law firms and lawyers and was told “you have no idea – lawyers don’t ask questions.”

The takes me back to Civil Procedure class at Widener Law, taught by professor Patrick Johnston. In his class, Professor Johnston said several things that only made sense a few years down the road. For instance, I attribute Professor Johnston with the quip: “In commercial litigation, there are no such things as plaintiffs and defendants. Just plaintiff-ish type entities and defendnant-ish type entities.” On another occasion, a student brought him cookies during the year. A known Type I Diabetic, Professor Johnston accused her of trying to kill him. Civil Procedure under Professor Johnston was a rare mix of philosophy, humor, and law — he ended up being the best professor I’ve ever had.

Brian’s article reminds me of a class where we were discussing International Shoe, and how one must show “minimum contacts” with the forum state in order to obtain jurisdiction. One student asked Professor Johnston the obvious but stupid question: “Just how many contacts is enough for ‘minimum contacts’?”

Professor Johnston replied “Eleven” with a straight face. His answer caught everyone a little off guard; first year law students frantically began going through their textbooks and notes. “Eleven? Was that in one of the cases? Was it Circuit or Supreme Court? State or federal? Was it in a footnote? Is this gonna be on the exam?”

Professor Johnston then said: “Actually I just made it up. It’s the Patrick Johnston Rule, my own contribution to Civil Procedure.” He went on to explain: “See, lawyers don’t ask a lot of questions. If one lawyer says ‘Eleven’ is the requisite number of minimum contacts, other lawyers will repeat that. Eventually it will become the law. So from here on out, I want you to keep saying the amount of minimum contacts necessary for jurisdiction is ‘Eleven’, because that’s what Professor Patrick Johnston told you. In five years, I bet the law will be Eleven.”  (I wouldn’t be surprised if “Eleven” is the state of the law in Pennsylvania right now.)

Which brings me to my point: apparently all one has to do to become a “marketing guru” is keep repeating that they’re a marketing guru. Write a book, use Twitter, start a website, and declare yourself a marketing guru. The more you say you’re a “guru”, the more speaking events you’ll secure, which you can add your qualifications, thereby creating a self perpetuated system without ever having to have any actual experience or qualifications.

Quantifiable results don’t matter. Hell, it doesn’t even matter if you have never actually generated a client.

Just keep repeating something and eventually it will become real. Well, perceived as real.


New Jersey May Revise Bona Fide Office Rule and Make it More Confusing for Out of State Practitioners

February 12, 2012

I'm supposed to lug these over the bridge to New Jersey?

I am a Philadelphia lawyer, but I’m also licensed to practice in New Jersey. I don’t have an office in New Jersey because I’m not required to. I mean, I can practically see New Jersey from my office.

Yesterday I wrote about New Jersey’s bona fide office rule, and why I think it makes some sense in its current form. New Jersey wants it to be clear to everyone where an attorney can be reached during normal business hours. When it’s not clear where a person gets their mail, disaster can happen.

The rule was a compromise of an older rule that required New Jersey lawyers to have a bricks and mortar office within the state. Later the rule was relaxed, simply requiring a New Jersey attorney to make it clear where they practice law during normal business hours.

Practitioners like Carolyn Elefant have raised valid issues with the bona fide office rule – namely that lawyers who operate out of their homes  have to make their addresses available to the public. This is particularly problematic for those who represent accused criminals, especially females, who, under the current rule, must use their home address on their letterhead and advertisements if that’s where their bona fide office is located.

Brian Tannebaum has supported the rule, stating that clients deserve to know that their files are being kept in a safe place away from children, visitors, and pets, in a location with insurance and security. Brian also argues that “state Bars are not in the business of making it easy for lawyers to define law practice just because a bunch of unemployed whiners want to practice while sipping mocha lattes at Starbucks.”

Both make good points.

However, I understand Carolyn’s concern with the Rule, and I would not be opposed to modifications that allowed home based practitioners to enjoy a greater degree of privacy. For instance, a provision that allowed a home based practitioner to use a virtual office or a P.O. Box for mail, provided the attorney disclosed to their client that the practice is based out of their home and disclosed where their files will be kept. There is certainly nothing wrong with a home based practice, provided everyone knows what is going on and is on board with it. (which is also what Brian suggested, but I don’t think that’s how the bona fide office rule works in its current inception).

In my opinion, if a client doesn’t mind that their lawyer’s office is home based, I don’t see a problem. A lawyer should disclose to clients that their practice is home based, even if they don’t give out their home address.

However, Stephanie Kimbro writes that New Jersey is contemplating changing the bona fide office rule. While New Jersey is apparently trying to be more friendly to the realities of virtual offices, the proposed amendments create more of a problem than the Rule in its current form. According to Stephanie, the new proposed language for Rule 1:21-1(a) is:

Rule 1:21-1. Who May Practice; Attorney Access and Availability; Appearance in Court

(a) Qualifications. Except as provided below, no person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State, has complied with the Rule 1:26 skills and methods course requirement in effect on the date of the attorney’s admission, is in good standing, and complies with the following requirements, except as provided in paragraph (d) of this Rule, maintains a bona fide office for the practice of law. For the purpose of this section, a bona fide office is 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. For the purpose of this section, a bona fide office may be located in this or any other state, territory of the United States, Puerto Rico, or the District of Columbia (hereinafter “a United States jurisdiction”). An attorney who practices law in this state and fails to maintain a bona fide office shall be deemed to be in violation of RPC 5.5(a).

(i) An attorney need not maintain a fixed, physical location, but must structure his or her practice in such a manner as to assure prompt and reliable communication as set forth in RPC 1.4 with, and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice; provided, that an attorney must designate one or more fixed, physical locations in New Jersey where client files, and business and financial records, may be inspected on short notice by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly received, and where process may be served upon the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto, in the event service cannot be effectuated pursuant to the appropriate Rule of Court.

(ii) An attorney who is not domiciled does not maintain a fixed physical location for the practice of law in this State [and does not have a bona fide office in this State], but who meets all the other qualifications for the practice of law set forth herein must designate the Clerk of the Supreme Court as agent upon whom service of process may be made for the purposes set forth in subsection (a)(i) of this Rule. [all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto, in the event that service cannot otherwise be effectuated pursuant to the appropriate Rules of Court.] The designation of the Clerk as agent shall be made on a form approved by the Supreme Court.

A person not qualifying to practice pursuant to the first paragraph of this rule shall nonetheless be permitted to appear and prosecute or defend an action in any court of this State if the person (1) is a real party in interest to this action or the guardian of the party; or (2) has been admitted to speak pro hac vice pursuant to R. 1:21-2; (3) is a law student or law graduate practicing within the limits of R. 1:21-3; or (4) is an in-house counsel licensed and practicing within the limitations of R. 1:27-2.

Attorneys admitted to the practice of law in another United States jurisdiction may practice law in this state in accordance with RPC 5.5(b) and (c) as long as they maintain a bona fide office.

No attorney authorized to practice in this State shall permit another person to practice in this State in the attorney’s name or as the attorney’s partner, employee or associate unless such other person satisfies the requirements of this rule

The first part of Section (a)(i) states: “An attorney need not maintain a fixed, physical location, but must structure his or her practice in such a manner as to assure prompt and reliable communication as set forth in RPC 1.4 with, and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice.”

Makes sense.

I also agree with Stephanie that the Committee has the right idea: “the rule’s underlying purpose – ensuring ‘that attorneys are available and can be found by clients, courts, and adversaries’ – are still paramount.”  The Committee report also states that they made the decision not to try to define “bona fide office” and “virtual law office” but instead to focus on “access and availability”.

In my opinion, the Rule’s focus should be two fold: (a) where can a lawyer be reached during normal business hours?; and (b) do clients know where their files are being kept? That’s all.

However, the second part of Section (a)(i) confuses me. An attorney apparently now must designate a physical location in New Jersey so that their files can be inspected on short notice, mail can be received, and papers can be hand delivered.

That doesn’t make sense…

First, the proposal undermines the purpose of the rule.  Under the proposed amendments, now out of state New Jersey attorneys must be responsible not only for their actual mailing address, but a second address in New Jersey. This could create confusion, sort of like what I wrote about about yesterday. Ironically, it also forces out of state New Jersey practitioners to acquire a virtual office within the state, which will, among other things, drive up the cost of legal services. I say this is ironic because the The Advisory Committee on Professional Ethics (ACPE) and Committee on Attorney Advertising (CAA) issued a joint advisory opinion expressing concerns about virtual offices. Specifically, the Committees said that clients were likely to divulge confidential information to employees not employed by the law firm. However, this proposed rule change now seems to encourage the use of virtual offices by out of state practitioners.

Second, what is a practitioner who isn’t located close to New Jersey supposed to do? For instance, I haven’t always been kind to Rachel Rodgers (a New Jersey / New York lawyer living in Arizona) on this blog, but if she were to complain about this revision to the Rule, I would agree with her. Does the bar expect someone like Rachel to fly from Arizona to New Jersey at their whim? This revision forces New Jersey practitioners to live close to the state. Of course, one could make an argument that an attorney should at least have some access to a state where they purport to practice.

Finally, practically speaking, how is this Rule actually supposed to work? Is a Philadelphia practitioner like myself supposed to throw a filing cabinet into my car and drive it to New Jersey if the bar wants to perform an audit…? My files are kept here at my bona fide office in Philadelphia. What is the point of having to take them into a virtual conference room in New Jersey? I do not like the idea of having to worry about getting paperwork in two different locations, especially considering that receiving mail at my office in Philadelphia works just fine, thanks.

While I appreciate the point of New Jersey’s bona fide office rule, I don’t think this new approach works. It might not even be constitutional. What the New Jersey bar ought to do is reserve the right to audit someone’s files anywhere in the country, while adopting the first section of (a)(i) to ease the restrictions on virtual offices. The state bar’s focus should be on making sure that it’s clear where an attorney can be contacted, as well as ensuring that clients know where their files are being stored. This proposal just creates issues and expenses for out of state practitioners.

(Thanks to Antonin Pribetic for sending me this article. And a big shout out to Stephanie Kimbro for her article).


Law Schools Should Be Held Accountable for Their Dammed Lies & Statistics.

February 12, 2012
Courtesy Wikipedia.

The are three types of lies. Lies, dammed lies, and statistics.

-Mark Twain

[Disclaimer: this is a bit of a rant. It may also fall into the category of tl;dr. You’ve been warned]

A while ago, Jordan posted an article berating “whiny graduates” for filing a “silly lawsuit” against “a Reputable Institution of Higher Learning and Legal Education” (read: heavy sarcasm) more properly known as Widener Law.

Though I respect Jordan and admire his zeal and self-determination, he’s totally wrong here.

Law School Employment Statistics are Bogus (Not News Anymore).
It’s an open secret that law school employment placement numbers are lies. Schools manipulate placement data to support their claims of 90% employment and six-figure salaries. Admissions offices entice new college grads with claims that a J.D. is a ticket to opened doors and unlimited potential – that it makes you more valuable and attractive to other employers. This is not true.

I don’t want to be accused of sour grapes, so I want to tell my own law school admission story, that you all might understand my perspective here.

I worked at Starbucks Coffee through my college years. I’d wake up around 4.00-4.30am, shower, dress for work, and then make my way to the shop. Generally, I’d work from 5.00am to 1.00pm, after which I’d head down to school for night classes, which ended after 9.00pm.

At some point, like many kids, I decided to act on my long-time-dream of becoming a lawyer. So I studied at home for the LSATs, took them, and did pretty well. While my score wasn’t going to get me into Harvard or Yale, I essentially had my pick of the schools I applied to in Philadelphia. I was given very generous offers by both Temple and Drexel – which boasted a brand new school.

At the time I applied (2006), all the law schools here in the Philadelphia region reported around 90% employment rates and average salaries greater than $75,000.00. (This was a lie then, as it is now).

Ultimately I decided to take a risk on the new school with the thought that I’d be part of an exciting new school that fight hard to make its name and thereafter support its small network of alumni. Because Drexel was a new school, it didn’t have the same employment statistics as the other in the City – but I had little concern because the legal job market seemed universally rosy. Hell, I was the first student who accepted his offer to Drexel’s 2010 class.

I now know that because of the dodgy self-reporting requirements for employment statistics, I didn’t have a complete picture of the job market. I doubt any law school applicant really did because everyone was playing hide the ball.

When I accepted at Drexel, I knew I wanted to be a trial attorney – maybe beginning in a DA’s office or working in a BigLaw firm for a few years to pay off my loans – and eventually opening my own practice.  Like many of my classmates, I thought I understood that new law grads generally got picked up by firms for a few years, where they either stayed and made partner, or left to start their own own practices.

This is what I was sold by every single law school’s admissions office.

Not a single person in any admissions office cautioned that legal jobs were scarce, BigLaw jobs were scarcer, and that very few attorneys ever end up working at BigLaw jobs. Everything they said pointed quite to the contrary. Now I realize I should have known better because the folks working there are salesmen – there’s no duty for them to tell the truth.

In fact, the only person who told me anything approaching the truth was a night professor at Temple. When I asked him to for a letter of recommendation for my application packet, he cautioned: “There’s a huge oversupply of lawyers right now. It’s a very difficult market. You should be sure that you want to be a lawyer.”

Law School Starts, Where are the Jobs?
Like Jordan, I worked my first year of law school, starting again as a Barista at the Starbucks right by Penn.

But those 5.00-9.00a shifts made it really difficult to stay awake for my 9.15a classes, so after a few months I quit to focus on my studies. By the end of the first year, I ended up somewhere around the top 25% of the class, and according to the career office, I should have been picked up for a summer associate position.

Unfortunately, I quickly learned that despite what the career office told us, “Top 10 or Go Home” was the hiring model of most firms, and I ended up interning with a judge for credit and taking summer classes. I wrote onto law review as well, hoping to bolster my apparently-inadequate resumé. I wasn’t able to get a paying legal job anywhere.

My second year began with OCI season, where I interviewed for as many OCI bids as I could get (two or three, I think).

I struck out for any number of reasons – nervousness, inadequate grades, not enough experience, etc. Only recently, I learned that one employer passed me over becuase I looked “too sharp” and didn’t fit it at the firm. (Let that be a word of caution for you snappy dressers).

Disheartened, but not deterred, I applied for another judicial internship during my 2L year, which I ultimately landed. After that, I worked at a local DA’s office, realized I could never be a DA, and spent my third year as a clinical student at the Philadelphia Defender Association.

Which gets me to my point. I never once walked into my career office and asked “How much can I expect to make when I get my law license?” In fact, other than a quick resumé review, I never asked the career office for anything because I realized I had to do it myself. The market had tanked, recent grads were being fired left and right, and my career office was useless to do anything to help. And I realized that my career office – and every other career office at every other law school – had been lying to us.

What only a year or two prior was a vision of employment at a firm and an “average salary” of $75,000.00 a year –  that the career office at my school had a distinct role in perpetuating – was now a scramble to develop as many practical skills as I could to prepare myself for the inevitable “learn by the seat of your pants” model.

So I joined SoloSez, read Jay Foonberg, and took as many practical classes as I could to prepare myself for what I was my sole remaining choice: starting my own practice out of school.

Don’t get me wrong. I’m happy where I am. Solo practice is ultimately where I wanted to be – my schedule was just accelerated a bit. I have a few other classmates who also saw the writing on the wall, bunkered down, and started their own practices. I think it required a mix of stubbornness & savvy for us to do this. Maybe some stupidity too.

Some of my classmates are stuck in Doc Review Purgatory, hoping that they’re kept on a $25/hr project long enough to pay their rent and loan bills for the month.

Others abandoned the practice of law altogether after what felt like a futile search for legal jobs.

Bottom Line for Schools – Tell the Truth, the Whole Truth, and Nothing But the Truth.
Thousands and thousands of new lawyers are admitted each year without any market demand for them. Law school tuition is at an all-time high. Legal employment is at an all-time low. The ABA president, William Robinson, instead of doing anything to help alleviate the crisis, is instead calling unemployed grads idiots:

It’s inconceivable to me that someone with a college education, or a graduate-level education, would not know before deciding to go to law school that the economy has declined over the last several years and that the job market out there is not as opportune as it might have been five, six, seven, eight years ago…

Well, Bill – It’s inconceivable to me that someone who’s the president of the American Bar Association would spit in the face of the future generation of duped law grads who fell for the systematically manufactured employment and salary data.

These schools are committing fraud. They make material misrepresentations about salary and employment data, and defend themselves with the weak excuse “oh, but this is all self-reported data that we can’t audit!” Baloney.

Schools drum into us the importance of ethics. We’re required to disclose everything about our backgrounds to be admitted to law school, and then again to be admitted to the bar. Character and fitness is an element independent of one’s actual bar exam score necessary to be admitted to practice law.

And yet, these schools claim innocence? “We’re just doing what NALP tells us!” they say.

No. They know exactly what they’re doing. And these suits might just get their attention.

Parting Thoughts in the Overused form of Open Letters.
To those plaintiffs suing Widener: You have my full support. We need transparency in these stats. These schools know what they’re doing, and it’s wrong.

To Jordan: I read nowhere in the complaint that these kids wanted a ticket to easy money. Might they have been too gullible to rely on these stats? Perhaps. But there was also no reason to doubt them. Why would a school lie to its students?

These students simply wanted to rely on the statistics that their school published so they might reasonably rely on sound data for their chances of employment. They hoped only that the school to hold itself to the same Code of Conduct it expects its students to follow:

Section 201. Academic Misconduct Violations. It shall be a violation of the Code for a student to commit any of the following acts or omissions. Academic misconduct for purposes of this section includes both the curricular and extracurricular, regardless of whether academic credit is awarded.

***

(c) Misrepresentation. 

(1) To misrepresent a material fact with respect to academic performance or requirements.

I look forward to the ensuing litigation. Hell, I hope they fight it out in court. I want to see these pleadings.

Note: Leo isn’t just picking on Widener, but challenges all law schools who continue to knowingly use misleading, incomplete statistics to recruit unknowing wannabe lawyers to work toward real transparency in their employment statistics. Schools – live up to the standards you expect your students to live by. 


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

February 11, 2012

This is not Joseph Rakofsky

[Disclaimer: If you are Joseph Rakofsky, or here on his behalf, I suggest you review our Terms of Service before proceeding.]

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.


What’s the Worst that Could Happen? The “Baby Lawyer” Exception to Ethical Rules

February 11, 2012

I recently came across a disciplinary opinion from the State of Nebraska involving a young lawyer. We’ll call him JS.

JS took a job as a law clerk for a solo practitioner while he was in law school. When JS graduated in 2010, he began to work for the solo practitioner full time. Sounds like a good situation so far.

Unfortunately for JS (and more importantly, the clients), his boss began to make serious mistakes. According to the opinion, his boss began missing hearings and spending time out of the office, thereby leaving JS in charge of everything. His boss also directed JS to sign pleadings in her name, and even authorized him to pay himself out of the attorney trust account, which he did.

This didn’t end well for JS, and Nebraska’s Counsel for Discipline didn’t apply the “baby lawyer” exception. Because the “baby lawyer exception to ethical rules” doesn’t exist. The Counsel for Discipline saw it fit to impose public discipline against young JS, which will now follow him forever. JS’s boss was disbarred.

I know it’s tough out there, but if you’re a young lawyer looking for work, don’t take just any job. Make sure that you vet the attorney and the law firm who you’re working for. You just paid a lot of money for your law license, and while I know you have to pay those student loans back, it’s not worth throwing it all away for a job.

You can be held responsible for the errors of your superiors, and the state bar won’t make a “baby lawyer” exception…


February 11, 2012

Further insight into the Prop 8 case.

The Legal Satyricon

I, for one, am elated that the Ninth Circuit Court of Appeals found Prop 8 Unconstitutional.  Source . However, I would be remiss if I didn’t at least bring up the one thing Prop 8 supporters have going for them- Prop 8 was passed by the voters. And that is a very good, very important point. Whenever the judicial branch overturns the will of the people, we all have an obligation to think twice about the rationale behind it. Even when our knee jerk reaction is to celebrate, take a moment for a sanity check because things may not always shake out in our favor. The Prop 8 supporters were right to bring this issue up and their briefing on the subject ain’t half bad.

That being said, and beyond the “will of the people” argument, I admittedly have a hard time understanding the Proponents’ reasoning. As far as…

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