More on Joseph Rakofsky: The Story Keeps Getting Worse

by Jamison Koehler on April 10, 2011

“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?

9 Comments on “More on Joseph Rakofsky: The Story Keeps Getting Worse

  1. Do you really mean to say that the “burden is also on the party hiring the lawyer to perform due diligence?” Clients should be entitled to rely on the representations of lawyers, for whom deceit constitutes a significant ethical violation.

    While it would certainly be in potential client’s enlightened self-interest to be skeptical, particularly given how many lawyers on the internet (and IRL) have proven less than honest and accurate in their marketing efforts, and how many lawyers are all too happy to be apologists for unethical behavior, but the burden is never on the client for a lawyer’s ethical failing.

  2. I understand that we are a monopolistic and self-policing profession dealing with a very complicated and arcane subject area. In an ideal world, a person looking for a lawyer should be able to hire someone with confidence that the lawyer who accepts the representation is fully competent to provide that representation. And, yes, Rakofsky should certainly be disciplined. Nothing I say below should be construed as an attempt to excuse his behavior.

    At the same time, living in the real world as we are (I had to google “IRL” to find out what that means) and as sympathetic as I may be to Deaner’s family, particularly in light of their financial constraints, it is hard for me to accept that they are completely blameless in this story. There is a reason that most lawyers would charge double or triple what Rakofsky demanded. That he came so cheaply should have served as extra reason to check him out.

    There may well have been limitations to the avenues available to them. I have no idea whether or not they have any friends in the legal community who could have referred a lawyer to them and, as I understand these things, calling the relevant state bar would only have informed them whether or not he had ever been the subject of a complaint. As for what I imagine many people would do, checking him out on the Internet, you have been one of the more passionate and articulate voices warning of the dangers of Internet marketing.

    At the same time, having asked him to provide a single reference — out of “enlightened self-interest” — should have brought out the fact that he had never tried a case before, much less a first-degree murder charge.

    You and others have given a lot more thought to the whole notion of ethics on the Internet than I, and, lest I repeat mistakes I have made in the past, I should probably avoid saying things until I have thought them through a little bit further. For example, I have always thought that, with all the due process protections in place, the state bars are the only appropriate place to raise these types of issues. I have also had qualms about lawyers calling out other lawyers on the Internet without these due process protections in place.

    Given the fact that we are a self-policing profession, and with the whole system reliant on people actually reporting abuses and these organizations clearly not up to the task of performing such a herculean task, I am having to reevaluate my thinking on all of this. And to preempt you on this, yes, my thinking still has a long way to go.

  3. This is not an issue of client due diligence based upon a contract model of legal representation. It is also more than simply an innocent (more accurately a negligent, if not fraudulent) misrepresentation about legal ability made by an inexperienced attorney whose ineffective counsel led to his removal from the case and a mistrial. The attorney-client relationship is fiduciary in nature; built upon trust and confidence. Full stop. I repeat. Fiduciary. Even a sophisticated client is owed a duty to be represented by competent counsel. It is not caveat emptor: the legal supermarket concept is anathema to our noble profession.

    While the social media law marketing crowd yammers on about SEO unbundling of legal services, virtual law practice and cloud computing under the guise of client needs, new lawyers should take the Rakofsky story as an object lesson on how the profession of law can never be subsumed to the business of law.

  4. I have been a practicing criminal defense attorney for more than 13 years. I am fully convinced that to be a successful criminal lawyer one only needs to speak well and dress well. I know lawyers that know absolutely nothing about criminal law but they are just as successful, both financially and with positive results, as lawyers with book smarts, perhaps even more successful. Although I would be panic stricken to appear in court without legal knowledge, from what I see it really isn’t necessary. I get the same dispositions and trial results that the incompetent lawyer get. I guess if you know the law you know when the District Attorney is trying to roll you. But I suppose the incompetent lawyer can sense weakness just as well, its just not founded in law. There are two extensive advertising criminal law firms in Los Angeles where I practice. One charges very little and pleads every client out on the first or second appearance. The other charges a huge amount and pleads the client out on the day of trial (after a full trial fee has been paid). You certainly don’t need to know a thing about criminal law if that’s your business model. The only thing that saved Deaner is Rakofsky’s admission and his obvious inability to speak well (or keep his mouth shut). Then again, you can’t argue with success. Mistrial!

  5. I think the Rakofsky case is the result of a downward spiral, or as Greenfield calls it “race to the bottom” of the legal profession. I hope it continues to be discussed, and discussed a lot. I hope every law school puts this case in their professional responsibility case materials.

    The responsibility, first, is on the lawyer. But we as lawyers constantly lament that clients spend more time “buying shoes,” then they do selecting a lawyer. While it’s our responsibility to be honest, we hope that clients take more than a cursory look at their prospective lawyer, especially if the case calls for a life or death sentence.

    I represented a client on various charges. Four years into my representation, after a trial, and more charges, the client was indicted for murder. I worked on the case for a while, having handled murder cases in the past, but was then told the state was seeking the death penalty. I had never, and still have never handled (by choice) a death case. My client had no idea, and was concerned about me leaving the case, so I discussed it with several experienced death penalty lawyers. They all said I was experienced enough to continue working on the case, and that I should seek continuation of my appointment, and just attend the required certification class.

    I chose not to. This was a high profile case and I was not going to get my experience on this client’s case, even though I could have. What’s the difference? I would just hire a second chair lawyer, some experts, and advocate?

    Lawyers were surprised- after all, I was looking at a nice fee on the death case.

    But I said no, withdrew, (the judge was even surprised I was not certified to handle death cases) and 2 experienced death penalty lawyers took over.

    I did what I thought was right for the client, not me. But no one would have ever known I was not technically qualified for a death case, unless I said so myself. I could have quietly taken the class, and continued.

    How many of today’s young lawyers looking to pay the rent would be willing to tell a client with a checkbook that they never handled a case like theirs?

    And isn’t that what’s wrong?

  6. The shortlist of top criminal defense lawyers isnt much in controversy in DC: Leonard Long, Kevin McCants, Brian McDaniels, Ferris Bond, James Rudisill, Nikki Lotze, Janet Mitchell (PDS) and Doug Wood–but, you need alot more than $10,000 to hire one of those heavy-hitters for a muder case.

  7. “”…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.”

    Or we could increase training and certification standards in order to safeguard against the unscrupulous and/or the well-intentioned novices who greatly overestimate their own abilities. Frankly, it’s absurd that law licenses in most cases are one-size-fits-all, where passing the bar allows one to represent clients with no specialization or case-specific certification.

    Law would benefit greatly by cutting formal law study to two years and mandating the next two years as a legal “residency” of sorts where students are forced to gain hands-on experience in a supervised fashion before they are even licensed and let loose to participate in this “race to the bottom.” And both that residency and the bar exam should be specialized in a particular area, such as corporate law or family law or criminal law.

    Though people belly-ache about health care in this country, there’s little wrong with its system of training, and when people go to a thoracic surgeon, they know he’s had his hands inside someone else’s chest before. You can’t say the same about lawyers, and it’s a flaw in the education process, not a failure of consumers to do “due diligence.”

  8. Is there a venue where I can set the record straight on this or provide more information??? I was a juror on this trial and am absolutely astounded by what happened in court. I’d be more than happy to discuss if it doesn’t break any confidentiality rules.

  9. Juror:

    While my interest in the story is purely academic, I can think of at least two parties who would be very interested in hearing what you have to say. The first party would be the relevant state bar. The second would be David Benowitz, who is now representing Dontrell Deaner. Please feel free to email me for help in contacting either party.

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