This is the sixth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto. All installments in this series are collected in the Rakofsky v. Internet category of this blog.
The frightful momentum of the avalanche of motion and pleading filings grew apace this past week, as regularly monitored and ably reported by [my co-defendant and local counsel] Eric Turkewitz:
Rakofsky has filed an opposition memorandum to the pending motions by the collectively-appearing Group of 35 [formerly 33] defendants, seeking admission of Marc Randazza pro hac vice and requesting a single response date be set for the filings of all defendants. Opposition to a pro hac application is highly unusual, as such motions are generally granted out of hand in support of a general policy of allowing litigants to be represented by counsel of their choice. Joseph Rakofsky's opposition memorandum―which he appears to have authored himself―urges that Mr. Randazza's admission should be denied because Randazza has spoken to Rakofsky in rude and colorful terms in a single telephone conversation.
On Monday, June 20, the Group of 35 filed their reply papers, including responsive affidavits from Turkewitz and Randazza. This likely concludes the written submissions concerning this motion, which remains before the Court for decision at this writing.
Also on Monday, it was confirmed that Joseph Rakofsky's own attorney, Richard Borzouye, has applied to the Court for permission to withdraw from further representation. If that application is granted, Rakofsky could continue to appear on his own behalf, but there is substantial doubt whether he can represent his law firm, which is organized as a professional corporation, without himself being admitted pro hac vice for that purpose. (Generally, corporations and similar business entities are not permitted to appear pro se/in propria persona, and must be represented by an attorney. Joseph Rakofsky is admitted to practice law in New Jersey, but not in New York, so his appearance on behalf of the professional corporation would require the Court's permission.) Again, there has been no ruling yet on the Borzouye motion to withdraw.
On Thursday, June 23, came word that the first of the first appearance by one of the large media related defendants, as Reuters filed a motion to dismiss. That motion, filed by attorney Mark Weissman of Herzfeld & Rubin, includes a memorandum of law addressing in detail many of the substantive issues and defenses that will need to be resolved, to the extent the case ever proceeds beyond the pleading stage. A good primer on New York defamation law, particularly as it relates to the right and privileges of the press. It has been well reviewed:
Orange County, California, criminal defense lawyer Michael Doudna is named as a defendant on the basis of a blog post [no longer available online]. On Friday, June 24, his counsel (Thomas Catalano of Lester Schwab Katz & Dwyer) filed a Motion to Dismiss and for imposition of sanctions on Rakofsky. Doudna's motion focuses on the question of personal jurisdiction, i.e., whether there is a basis on which the New York court can exercise jurisdiction over a defendant who has never entered the state. Sanctions are sought on the ground that Rakofsky's suit is frivolous and filed in bad faith.
As Eric Turkewitz notes in his report, the most intriguing aspect of the Doudna motion is the revelation that Mr. Doudna has been sued for a blog post he did not write, post, or even personally approve. The Doudna firm hired a marketing consultant, Kenney & Associates ("KA"), in March 2011, and KA created, and was apparently solely responsible for maintaining, a blog in Doudna's name. Posts to the blog seem to have consisted of summaries and pointers to other sites' material on criminal law issues. One such item that was linked and described was the ABA Journal's piece on Rakofsky, which in turn relied on the Washington Post's original reporting. Mr. Doudna states in his supporting affidavit that he did not write, post, or even read that report at the time. In fact, dissatisfied that the blog was not producing immediate increases in business, he terminated the relationship with KA; KA itself went out of business almost immediately thereafter. And a month later: voila! Mr. Doudna is a defendant in the notorious case of Rakofsky v. Internet. It's like a parable of legal services marketing, offering lessons galore for those who will learn them.
While commentary on Rakofsky is still largely the province of legal blogs, the case continues to percolate through hidden and permeable strata of online consciousness, erupting like a sand boil where it is least expected, such as for instance on Moxie Bird―a site promising "News, Sex, Style, Technology, and Fun for Parents with Moxie!"―where staff writer Lexa―
Lexa obsesses about her hair more than you want to know. She hates tardiness, people who don't send thank you notes and pigeons.
―offered up some none too trenchant observations in a post titled "Young Lawyer Sues Internet":
The internet mocking got to be a bit embarrassing for Rakofsky, so he did what any reasonable person would do: he filed cases of defamation against 81 different parties. Anyone who hurt his feelings was served. Because the way to react to public humiliation and a bruised ego is to call more attention to it. Good plan there, bucko.
The Moxie Bird piece looks to have been triggered by last week's rather more insightful Atlantic Wire item.
Cheering, hooting and jeering from the sidelines, Ken at Popehat declared: "Rakofsky Totally Has The Internet Just Where He Wants It Now." That post, typical of the genre, focuses largely on the perceived weaknesses of Rakofsky's own position, but Ken is not above casting a morsel of jaundiced attention toward blawger defendants as well:
5. Lawyers Being Lawyers: Meanwhile, lawyers continue to be lawyers. A number of law bloggers, despite being represented by counsel in the case, have continued to blog not only about Rakofsky’s conduct (which I might begrudgingly tolerate, were I their attorney) but about the process of being represented in and refuting Rakofsky’s lawsuit. That gives you a hint of what it’s like to represent lawyers, who are bowel-churningly awful to represent in ways similar to, but distinct from, doctors (with the exception of any doctor or lawyer clients reading this, who are awesomesauce, of course). The phrase that best depicts what it’s like to have a lawyer as a client is “Hey, guys, watch THIS!”
Ken likely had in mind posts such as [defendant] Jamison Koehler's "Rakofsky v. The Washington Post: Being on the Other End of the Attorney-Client Relationship." In fact, we know he had that post in mind, because he and [defendant] Scott Greenfield put in appearances in the comments to Koehler's post to say so.
If recent history is any guide, some new and fascinating Rakofsky post will surface not long after this one is published. I will be sure to report on it in my next installment. The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days.
Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here. To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.
[Defendant] Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People. My own selection of links is purely subjective and not necessarily comprehensive. The CMLP Threat Page is not currently monitoring or compiling online discussion about the case (as opposed to online access to filngs in the case) so, as I have been doing each week, I recommend regular consultation of the Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet.
Illustration: Photograph of the debris field including wrecked train cars following the Wellington Avalanche of March, 1910, via Wikimedia Commons.