Explaining the Rakofsky Defamation Suit on an Application

Filling out an application can be a painful process for anyone who has ever been arrested or convicted of a crime. What specifically is being asked? What is an honest response? And how can I put this response in the best possible light so that it doesn’t torpedo my chances of having the application approved?

Most applications used to ask if you had ever been convicted of a felony.  The inquiry today usually goes much further:  Have you ever been arrested?  Have you ever been convicted of any crime at all, misdemeanor or felony?  I even saw an application recently with a question about crimes of moral turpitude.  Who knows the answer to that one?  You can have an immigration lawyer explain the definition of moral turpitude to you and still not understand it.

A positive answer to any of these questions poses particular heartburn in the D.C. area.  With all the government workers and defense contractors, there are many people who are worried about their security clearances.

My typical advice to people who ask me these questions – usually in connection with an arrest – is that it is probably wisest to err on the side of inclusion.   Potential employers are typically more interested in your honesty and moral character today than in some foolish thing you did 10 or 15 years ago.  And, as anyone who has ever tangled with an immigration official will tell you, it does not matter if you have had an arrest record expunged/sealed and the law tells you in plain language that you are now in the same legal position as you were before the arrest, you should probably still divulge the fact of that arrest.

So I am thinking about all of this as I fill out an application and come to the part at the end with a series of questions about my character. Convicted of a crime?  No. Sued by a client?  No. Disciplinary complaint against you?  Not that I know of.

This is all very easy and I am whipping through the questions — because after all we are at the end of what was a very long application — and suddenly I come to the next question and the whole thing comes to a screeching halt: Have you ever been a party or otherwise involved in any other legal proceedings?

First of all, the question is not phrased very well.

Second of all, there is this whole Rakofsky thing, the defamation suit.  So my heart sinks as I check yes, and now I have to fill out a separate sheet to explain.

Joseph Rakofsky is the New Jersey lawyer who, two years out of law school and without ever having been to trial before, came down to D.C. to sit first chair in a murder trial.

Good opening, I think.  Attention-grabbing.  It is also tailored to my audience, all D.C. lawyers.  Nobody likes an interloper.  I am sure I already have their sympathy.

The Washington Post reported on the disaster that followed . . .

Good, good.  Associate myself with the local paper.

. . . with the Judge declaring a mistrial and stating for the record that he had never seen such incompetence before. 

Should I mention the judge’s name for added oomph?  Nah, too much.

I cited the Post report in two blog entries I wrote last April in which I criticized Rakofsky for taking on the case despite his lack of experience. 

Oh yes.  They are with me now, I am sure.

Rakofsky has since sued the Washington Post, myself and over 70 other parties for defamation. 

Again, I can’t emphasize enough that I am in good company. Think Woodward and Bernstein and Watergate.

I stand by my blog entries . . .

Taking a stand is always a good thing, right?

. . . and have good reason to believe the suit will be dismissed both for lack of jurisdiction and on the merits.

I can just hear the table-thumping now.   Application approved!  And while we are at it, let’s give the guy a medal too, what do you say?

No, no, please, it was nothing.  Nothing at all.