Rakofsky v. The Washington Post: Being on the Other End of the Attorney-Client Relationship

by Jamison Koehler on June 21, 2011
Jefferson and Washington monuments

Over at My Shingle, Carolyn Elefant muses about finding herself on the other end of the attorney-client relationship; in this case, as one of over 80 defendants in what started out as Rakofsky v. The Washington Post, what one wag dubbed Rakofsky v. The Internet, and, with Rakofsky’s lawyer giving notice to withdraw from the case, what now appears to be Rakofsky v. The World.

Although Elefant says she is used to seeing her own name on the signature line, something that still gives her pleasure every time she sees it, “now, as a defendant, I am ensconced in the passenger’s seat on the other end of the pleading.” She continues:  “Initially, acting as both the consummate, micro-managing lawyer and stressed-out litigant about having to deal with a frivolous nuisance of a lawsuit, I tried to assume control of the case by interjecting my opinions and peppering my lawyers with questions. Yet, after just a few weeks, I’m surprised at how easy it’s become to sit back and let my lawyers take the wheel. To entrust them to make the final decisions about the case strategy and approach so that I don’t have to obsessively examine every angle.”

Elefant and I have different lawyers. Elefant went with a large group of the Rakofsky defendants represented by California First Amendment lawyer Marc J. Randazza.  I and two other members of the “Rakofsky 74” hired David Brickman of Albany, New York.  But I agree with everything Elefant has said; it is in fact very strange to find yourself as the client.  I am hoping I will become a better lawyer because of the experience.

I suppose I should be embarrassed to admit this, but I barely read the Motion to Dismiss that Brickman filed on my behalf. Like Elefant, I knew that, being the “consummate micro-managing lawyer and stressed out litigant,” there were dangers of my becoming too involved. I hired Brickman to represent me after deciding he was the right person to do it. Why not let him worry about the details?

Brickman has in fact done a few things differently than I would have. For one, he extended me the courtesy of starting work on my case before my check had cleared. For another, when I asked for his advice on the posting of future blog entries discussing the case, he didn’t give me the conservative “don’t get yourself into any more trouble” response I was expecting. His simple response instead:  you have lost the case the moment you allow it to “chill” your right to free speech. I guess that’s the advice you get when you hire a First Amendment lawyer to represent you.

By reporting on my conversation with Brickman, I have just revealed a confidential communication protected by the attorney-client relationship.  It is my privilege to waive.  That too felt pretty good.

5 Comments on “Rakofsky v. The Washington Post: Being on the Other End of the Attorney-Client Relationship

  1. And here I think I’ve been the model client. Thanks for the chuckle.

  2. Even if you had a brass monkey as a lawyer, you could not possibly lose this case, and Rakowsky cannot possibly win. The issue that I see in this case is whether the judge (Emily Goodman) will sanction Rakowsky and his attorney, and if so, how much, and whether the disciplinary Committee of the New Jersey Supreme Court will take action against Rakowsky once the litigation has ended.

    Marc Randazza gave Rakowsky an opportunity to keep from going down in flames by offering a settlement whereby his clients would give Rakowsky an opportunity to explain his position on their blogs. Of course no money was offered. Rakowsky stupidly rejected this offer.

    I was wondering what I would do if I were the judge in this case. Under 22 NYCRR 130-1.1 (the rule governing sanctions for frivolous litigation), I would probably hit Rakowsky up for the attorney’s fees for all the defendants, and I would issue a show cause order for his counsel to personally appear to explain why this suit was commenced. Depending on the explanation, sanctions of up to $10,000 per defendant can be imposed. The defendants that did not answer would have the cases against them dismissed sua sponte, and that would be that.

  3. Pingback: Defending People » Compendium of Rakofsky (and Borzouye) v. Internet Blog Posts

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