“We really didn’t check him out. He said he was this and could do that. We thought he was telling the truth.”
— Henrietta Watson, grandmother of defendant Dontrell Deaner
The blogosphere has been abuzz the past week with the story of Joseph Rakofsky, a 33-year-old lawyer two years out of law school who took on a murder case in D.C. without ever having gone to trial before. Included among those who expressed consternation and disbelief were Jeff Gamso, Carolyn Elefant, Eric Turkewitz, Eric Mayer, Scott Greenfield, Brian Tannebaum, Max Kennerly, Antonin Pribetic, Mirriam Seddiq, Mark Bennett, and, most recently, Blonde Justice.
Have you ever before seen this many bloggers all cover the same issue?
As someone put it, Rakofsky’s name is bound to become synonymous with a form of ineffective assistance of counsel depending on the predilections of the person assigning the label. Was it hubris for thinking he could effectively represent the defendant on a first-degree murder case despite the lack of any experience whatsoever? Was it false advertising on the Internet? Or was it in-person misrepresentation of his qualifications to the family of the accused?
As it turns out, it was all of the above. And more.
With information drawn from the Washington Post article that broke the article along with tidbits from Rakofsky’s Facebook page, the problem with all of these blog entries is that we were dealing with a deficit of information. How had an out-of-state lawyer with only two years of experience as a lawyer and not a single trial under his belt come to the attention of a family in D.C.? And why would the family ever decide to hire him?
Today’s Washington Post provides answer to many of these questions. According to the Post, Dontrell Deaner’s grandmother Henrietta Watson was standing in a Manhattan courtroom waiting for a grandson to be released from custody when she was approached by a young lawyer who asked her if he could help. While Watson declined Rakofsky’s offer of help on the New York case, she told him about another grandson facing murder charges in D.C. and how her family was unable to afford the $25,000 to $30,000 fee normally charged in such cases.
Rakofsky offered to handle the case for $10,000. He followed that offer up with a phone call. And then another, telling her that he had “worked on criminal cases before.” Impressed with his tenacity and willingness to work on the case at such a low fee, Watson said she eventually decided to “give him a chance.” She was just as surprised as anyone else when he informed the jury during his opening statement that he had never done a trial before and said she confronted him in the hallway afterward: “I was shocked. I told him he lied to me,” she said.
The Post did not mention whether or not Ms. Watson or another member of her family had ever checked Rakofsky out on the Internet. Even if they had, they would have found nothing on Rakofsky’s site that would raised a red flag or otherwise dissuaded them from hiring him. You could visit the site and conclude from representations made there that he would be qualified to handle the case. This is the point that Tannebaum and others have been hammering home forever. To my embarrassment and chagrin, I have found myself on the wrong side of that debate.
In the end, the lesson from this story seems to have as much to do with the demand side of obtaining legal representation as with the supply side. While Rakofsky’s conduct will clearly be the subject of future law school study (see if you can spot all the ethical violations), nothing he did is new to those who monitor lawyer conduct and enforce the rules of professional conduct. And, despite the best efforts of state bars and “do-it-yourselfers” like Tannebaum, there will always be unethical lawyers who violate these rules.
As a result, the burden is also on the party hiring the lawyer to perform due diligence. Says Saul Singer, senior legal ethics counsel for the D.C. Bar: “Web sites and bar licenses don’t provide enough information. Potential clients need to get references and check out a lawyer’s reputation.” Singer continues: “I don’t trust the Internet, because anybody can go on there and say anything.”
The Post also reported that Rakofsky has refused to pay the investigator who performed work on the case and, adding insult to injury, has declined to refund his fee to the Deaner family. I was also interested to read that, while the court has appointed David Benowitz to represent Deaner in his new trial, the family is looking into the possibility of hiring new counsel. While making no judgment about new counsel, I can say that the family should apply the same degree of diligence to this decision. As one of the most respected criminal defense lawyers in town, Benowitz would be on my short list of lawyers to call if a member of my family or I ever got into trouble. And you can get his services for free?