Please Don’t Say Mean Things About Me!

Joseph Rakofsky is a young Touro Law grad who has attained more internet notice in the span of a month than could be promised a young, solo attorney by any social media guru charging thousands of dollars to generate a “Google presence” in the same amount of time.   He has also played witness to the premise that being noticed on the web is not always  a good thing. Now Joseph Rakofksy has sued the internet.

The facts leading up to the now coined, Rakofksy v. Internet lawsuit have been covered ad-nauseam in numerous blogs and mainstream journalistic sources so at the risk of this becoming a “what they said” blog, this all started when the Washington Post ran a story stating the following it it’s lead paragraph:

A D.C. Superior Court judge declared a mistrial Friday in a 2008 murder case and allowed the defendant to fire his New York-based attorney, who exhibited what the judge said were numerous signs that he lacked knowledge of proper trial procedure, including telling the jury during his opening statements that he had never tried a case before”

Joseph Rakofsky is of course, the “New York based attorney.” The logical implication is that the judge did not feel Rakofsky was competent to handle a murder trial. The legal blogging community naturally took interest and went with the “competence” issue based what the Post reported and other information that came to light after the story such as a juror in the case chiming in on just how bad Rakofsky really was.  Rakofksy has disputed that the mistrial was granted over his competence or lack of.  He makes his case for this in his pleading.  This dispute forms the basis of the majority of his defamation claims in Rakofsky v The Internet.

If you had the opportunity to view Rakofsky’s slick, video filled  web site prior to him pulling it down,  you might have believed he was the second coming of Clarance Darrow rather than a barely out of law school, inexperienced lawyer, not even licensed to practice in the jurisdiction of the murder trial.  This, combined with his reported murder trial antics, prompted many experienced and well respected criminal defense attorneys to take Rakofsky to task on numerous levels.  Rather than going quietly into the good night and take stock of his folly, hopefully coming back a better lawyer, if not person,  Rakofsky struck back with a lawsuit against pretty much every publication and blogger who said mean things about him.  A total of 74 defendants to date.

You can review the actual Rakofksy v. The Internet petition on Scott Greenfield’s, Simple Justice blog.  Scott, a New York criminal defense lawyer is one of the 74  defendants sued by Rakofksy.   I am not part of the “Rakofsky 74″.  At the time that Rakofsky’s alleged criminal trial meltdown was going viral and being covered by pretty much every legal blogger and publication I decided to pass. I am not a criminal lawyer.   I did not think I had any credibility to opine on what so many pre-eminent, knowledgeable criminal defense lawyers were dissecting with surgical precision.  My ability to cite facts and theory from every Law and Order episode did not seem to stack up.

From the civil side, in reviewing the Rakofsky  v. Internet petition, the first thing that struck me as has been aptly pointed out by Greenfield are the jurisdictional issues.  The suit is filed in New York.  The majority of the “Rakofksy 74” defendants are scattered across the United States and Canada.  New York’s long arm statute, like similar statutes in other states excludes defamation actions from it’s application.  As it applies to blogs, New York courts have been clear that a blog post or the maintaining of a blog in itself(even with ads) does not constitute a business presence in the state of New York for personal jurisdiction purposes. That means that Rakofksky has needlessly and dare I say, incompetently sued almost every defendant in the wrong jurisdiction.

As an example, if Rakofsky decides to sue me for what I say about  him in this blog, he would have to sue me in Dallas County although I suspect he will throw law and jurisdictional principals to the wind and sue me New York like everyone else.

Let’s take a look at one of the claims made against the “Rakofksy 74″ defendants.  In New York, where he has improperly sued almost everyone, it is called the New York Civil Rights Law(strangely enough).   It states:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor”

If  Rakofsky were to sue me in Texas ,  he would find that unlike New York, the statutory “right of publicity” only attaches after you are dead.  It is for the benefit of your estate.  The rest is handled under the common law theory of misappropriation of name or likeness.  In Texas the claim of misappropriation of likeness or name of another occurs only when the following are present:

(1) The defendant appropriated the plaintiff’s name or likeness for the value associated with it, and not in an incidental
manner or for a newsworthy purpose;
(2) The plaintiff can be identified from the publication; and
(3) There was some advantage or benefit to the defendant.

In Texas, he does not make it past 1st base on his “right of publicity” claim.  The  New York “right of publicity” is clearly it’s own animal and has had more historical opportunity to develop and be ruled on by the courts.  I am however assuming that the general basics are the same  in terms of what must be proven and the exceptions to liability.  The most basic one being that there is no right of publicity if your name or likeness is used in connection with the reporting of a newsworthy event.

What’s really bizarre is that Rakofksy seems to be basing the value/fame needed for his right of publicity  on the notoriety attached to him because of his alleged mishandling of the murder case.  He is basically suing the blogosphere for saying bad things about him and in the same breath saying he is entitled to relief because those bad things have made him “famous”.  Makes me wonder if Yossarian has flown that final mission to get out of the army yet.  Being a highly Google ranked court joker for a week, a month or however long Rakofsky extends his insanity until the court shuts him down establishes he is an ignorant fool. It does not establish value. He is not Elvis Presley.

When we get past all that foolishness we are left with Joseph Rakofsky, the naked, web site(now taken down) self proclaimed emperor of the criminal law bar who wants one thing.  He wants the Internet to stop saying mean things about him.  He has sued the Internet to make it happen. He is asking the court to engage in what we call “prior restraint.   The 1st Amendment to the Constitution says that’s a no no.  So will the court if it get’s that far.  I guess Joseph was out creating his “Internet Brand” when he missed that concept in Constitutional Law  at the acclaimed Touro Law School.  I am confident that at some point Joe will exercise some retroactive prior restraint on himself, shut up and go away.  With his demonstrated internet marketing prowess, he will no doubt be able to totally re-invent himself.  If there is anything he is competent at, it’s that.

You can go here for a pretty comprehensive listing of  the blogs and publications that Rakofksy alleges have said mean things about him.

4 Comments For This Post

  1. Carolyn Elefant (1 comments.) Says:

    I understand that you didn't want to post about this. But it is NOT just a story that belongs to the criminal defense attorney community. It is a story about how a new solo ruined his career. It is a story about how a lawyer's willingness to cross ethics lines at one's website are indicative of a tendency to ignore ethics rules in more important contexts. It is a story about what happens when a lawyer lacks a true, competent mentor. I blogged about the Rakofsky case at MyShingle on April 3 – well in advance of many of the CDLs. I'm not saying that my post was best or offered the most insight because it did not. But to portray this topic as something that "belongs" to the CDL community minimizes the lessons that the universe of solos may learn from it.

  2. bcuban Says:

    It is only portrayed that way because you seem have taken some type of affront that I did not mention you and viewed it in that context. It's not a king of the hill pissing match. It's coverage of an event.

  3. Patrick Lamb (1 comments.) Says:

    You're not a defendant. Yet. Apparently his legal mindset is that if you mention his name, you get sued.

  4. bcuban Says:

    If he wants to journey down Dallas way, I am happy to oblige.. He is warned though… We hate most New Yorkers..

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