Declarations and Exclusions

Marc Randazza: The Mark of Excellence

You will recall, perhaps, that I am a defendant in The Litigation Commonly Known as Rakofsky v. Internet. I have not posted updates on the case since last October, principally because the case was subject to a stay order. With the stay in place, there weren't much of nuthin' happening in the case. The stay expired on March 9 and, like maple sap in spring, the motion filings have started to flow again. The updates will start flowing again soon as well.

Today, as play resumes in Rakofsky, I want to take the opportunity to acknowledge the lawyer leading my defense, and the defense of more than thirty other defendants, most of them blawgers, in the Rakofsky litigation: Marc Randazza.

I had heard of Marc Randazza prior to being named as a Rakofsky defendant, but I had never had any contact with him. His presence and reputation were known to me through his blog, The Legal Satyricon, and through the blogging of others, such as Scott Greenfield or Ken-at-Popehat who know him firsthand.

Marc Randazza is a zealot, but a zealot of the best kind. His zealotry finds its focus in the First Amendment, and particularly the portions of that Amendment protecting freedom of speech and expression. Speech, without regard to its couth, its coarseness, its wisdom, its dunderheadedness, its cultural value, its tendency to discomfit or offend, is embraced by the First Amendment, and Marc Randazza has devoted his career to its preservation. Like Horatius at the bridge, Marc Randazza stands beside the Sluice of Speech to defend it and to see that its flow stays as wide and as free and as indiscriminate as possible.

What do we burn, apart from witches? More witches! What must we defend, apart from speech? More Speech!

Marc Randazza sees the Rakofsky suit, and far too many like it, as an attempt to pervert the power of law to the cause of stifling speech. He leapt, almost unbidden, to the defense of the Rakofsky blawgers in need of representation. With able assistance from Jay DeVoy of Randazza Legal Group and of our ace local counsel in New York, Eric Turkewitz, Marc Randazza is doing what is needful for me and for all of his other clients.

Marc Randazza has my back, and my back joins the rest of me in being grateful for it.

He is the man.

Thanks, man.

From the Complaints Desk [For Those About to Rakofsky (We Salute You)]

Oscar Fingal O'Flahertie Wills Wilde,
Patron Saint of Ill-Advised Suits in Defamation

~~~

Lawyers, even the best of lawyers, are only human, no matter what they say. Lawyers, even the most experienced of lawyers, but particularly younger and less experienced lawyers, can and do make mistakes.  When mistakes are made, in the law or in any other human activity, it is always to be hoped that the one making the mistake will (1) do whatever can be done to minimize or correct its ill effects on others, and (2) learn something from the mistake while moving on from it.  

The "moving on" part is important.  At least when they don't lead to your conviction of a crime, nearly all but the most notorious, blazing errors can in time be left behind if only you let time do its work.  And, like a scabbed-over wound, most errors will heal themselves more quickly if you will Just Leave It Alone.

In early April of this year, a young attorney made what looks to have been a mistake: as reported in the Washington Post and elsewhere, New Jersey attorney Joseph Rakofsky, less than a year out of law school, took on the defense of a murder trial in the District of Columbia.  Per the original Post report, he "exhibited what the judge said were numerous signs that he lacked knowledge of proper trial procedure, including telling the jury during his opening statements that he had never tried a case before."  The Court directed a mistrial.  Rakofsky, for whatever reason, seemed to boast about the outcome on his Facebook page.  Inquiring minds in the legal blogosphere began to inquire, and soon "Joseph Rakofsky" had become a teachable phenomenon, an occasion for fellow professionals to derive what lessons they could about the state of the profession and the Do's and Don'ts of practice, procedure, ethics, marketing, and so on, and to share those lessons with their readers.  On April 10, I wrote a bit about it here.

Joseph Rakofsky was a several days' wonder, but that was six weeks ago. Today, even most of those who had read the various original reports and posts would probably not be sparing him a thought.  But Joseph Rakofsky will not Leave It Alone.  Instead, Joseph Rakofsky has done the thing that we teach people to do in this country when they just won't Leave It Alone. 

Joseph Rakofsky has filed a lawsuit, in the courts of the State of New York, seeking damages and injunctive relief based upon defamation and invasion of his civil rights.

He has filed a lawsuit against the Washington Post.  

He has filed a lawsuit against other print media and reporters who covered the story.  

Most notably, he has filed a lawsuit against nearly every legal blogger who wrote about or commented on the story, casting about so broadly that Scott Greenfield, one of the first of the blogging defendants to be served, promptly nicknamed the case Rakofsky v. Internet.

And yes, I am among those named as defendants–we were dubbed almost immediately the Rakofsky 74–and I am specifically referenced in paragraphs 56, 57, 173, 174 and 188(w).  At this writing I have not received service of a summons or other process, and perhaps I never will.  Scott Greenfield, a New York practitioner himself, has pointed out that New York's "long-arm statute" contains an explicit defamation exception that should make it difficult or impossible for the court to obtain personal jurisdiction over non-New York defendants.  (More on that interesting subject from my respected Canadian co-defendant, Antonin Pribetic, here.)  

Prudence dictates against any extensive comment on the merits of this case at this time.  Others are having their say, at length and with vigor, and a quick search for "Rakofsky" will surely lead interested readers to the highlights and low lights of that discussion, which they may judge for themselves.  I will say that, upon review, I have no qualms about the propriety of what I wrote originally.  Such lessons as I drew from the case of Mr. Rakofsky were and are there to be drawn.

As is the lesson with which I started this post: Oscar Wilde found that the road from perceived defamation to litigation led instead to incarceration, and with surpassing swiftness.  There is no reason to believe that any fate quite so dire awaits Mr. Rakofsky, but there is also little reason to believe that he has done himself any long-term favors by electing to file suit.  Already, in the fewer than 48 hours since his suit came to light, he has resumed his place as a source of merriment and a target of scorn across the Internet.  There may be someone out there writing in his support, but I have not seen any sign of it thus far.  I'm no clairvoyant, but I have to believe that at some point in his future a chastened Mr. Rakofsky will look back with regret on the course he has chosen this week, and wonder why he didn't or couldn't Just Leave It Alone.

Mark My Words: These Words Are Marked, and Marketed

Some blogs are comment magnets, but this blog is not one of them.  If you averaged all comments over all posts since this blog's inception the "comments per post" average would not be zero, but it would probably be closer to zero than it is to, say, two.  (I could improve my average by counting, rather than deleting, spam comments, but then the resulting figures would lack credibility—not unlike the job placement figures reported by some law schools.  But I digress.)

Because comments are a relative rarity here, I pay attention when someone goes to the trouble of posting one.  Yesterday, a comment came in on my post from earlier this month on marketing legal services.  The commenter was Ed Poll of Edward Poll & Associates, Inc., of Venice, California, proprietor of LawBiz.com and other law firm management-related enterprises.  Mr. Poll is a graduate of UCLA School of Law, as am I.  From the records of the California State Bar, it appears that he practiced for some thirty years before electing in 1996 to go on "inactive" status.  I surmise he did so in order to devote himself to building his law firm management consulting practice.  And there is nothing wrong, at all, with any of that.  

Here, in full, is the text of Mr. Poll's comment:

As a marketer, you know how important branding is ... and use of another's brand and registered mark is not appropriate. I can only surmise, then, that your use of my brand in your post was a result of lack of knowledge.  The Business of Law(r) is my registered mark since 1995.  In the future, should you want to use it, please provide attribution.  Thanks.

The phrase "Business of Law," or some variant on it, appears twice in connection with my previous post.  In the body of the post, it is included in the opening sentence:

I would like to write a bit about the Business of Law [feh!] and about law firm marketing, but before I can do that I suspect I should make something of a confession.

(Bracketed expostulation in original.)

The phrase also appears, sort of, in the category label that I attached to that post, and which I am attaching to this one: "The 'Business' of Law."  

The phrase earns its capitalization by way of one of my personal rhetorical tics as a blogger: I commonly use the capitalization of proper nouns, with its over-formal 18th century aura, in much the way others use "scare quotes," to add ironic distance to a word or phrase.  The category label is thus doubly ironic, having both capitalization and scare quotes in its arsenal.  As the full post reveals, I have been and remain concerned with the uncomfortable relationship between the duties, aspirations and obligations entailed by the profession of Law and the venal "business" aspects of trying to make money from the practice of that profession or from the appearance of practicing it.

I have been hearing, and using, the phrase "Business of Law" for nearly three decades, always as a general descriptor for law firm management and the quest for profitability in the practice of law.  It is like "show business" or the "Business of Music."  It is a shorthand expression, a commonplace among lawyers, used in conversation, used in the marketing of seminars and books, used by the ABA Journal and Business Week, used in law school alumni publications [PDF], used to describe law school professorships, used in the names of blogs and in subject categories used by blogs, and used as a marketing tool by the mighty legal publishing house, West:

The phrase can be found at least as far back as the 17th century, in the February 18, 1666/67 diary entry of one Samuel Pepys:

Then by coach to the Exchequer about some tallies,and thence back again home,by the way meeting Mr. Weaver, of Huntingdon, and did discourse our business of law together, which did ease my mind, for I was afeard I have omitted doing what I in prudence ought to have done.

(Emphasis added.)  With somewhat more bearing on the matter at hand, the American Legal News of April, 1921, includes an article entitled "Barristers and Solicitors: The 'Profession' of Law and the 'Business' of Law," that begins with this:

Much discussion occurs, from time to time, in America on the question whether the practic of the law has ceased primarily to be a profession and has become a business.

Plus, as they say, ça change . . . .

There is no particular reason for me to think that Mr. Poll is a regular reader of this blog.  I would venture to guess that he read my post at all only because he, or some member of his staff, ran a search of the phrase "Business of Law" to see whether anyone might be engaged in the "use of [his] brand." Comments similar to the one that he left with me have appeared on other blogs, for example here (2010) and here (2006).  

I suspect that the running of such searches is part of Mr. Poll's regular business practice, as he places sufficient value on the phrase "Business of Law" to have gone to the trouble of registering it with the Trademark Office.  If that is the case, however, it is surprising that the comment here, and the other two just cited, are the only instances I can find of his having objected to the (very common) use of the phrase by others.  Comments in which Mr. Poll raises objection to the use of the phrase are seemingly equaled or outnumbered by instances in which he cites his ownership of the registered mark as though it is in itself an indicator of expertise, such as: 

How is it that law firm marketing folks can come to the law firm management table? Only by understanding The Business of Law(r) [my registered trademark]! 

(Bracketed text in original.)  Another example:

Your firm cannot aspire to achieve your benchmarks unless you understand the operation of the firm as a business (budget, collections, profit, loss), the firm’s billing structure, how each attorney determines firm profitability, and the importance of clients and their own businesses.  Years ago, I registered the phrase, ‘The Business of Law(r),’ because it summarizes this foundation of benchmarking.

(Emphasis added.)

So, because Mr. Poll has been moved to call the matter to my attention, I would ask any and all readers of this blog to please take due, proper, and lingering note that, as stated in his Company Policies,

LawBiz®, The Business of Law®, and Your Practical guide to Profit® are registered trademarks of Ed Poll and Ed Poll Management Associates.

The question of what protections or privileges may be associated with that registration is a matter beyond my expertise.  I venture to say that the right to prohibit my use, or your use, or anyone else's use, of the phrase "Business of Law" in a blog post or in any other discussion of what is commonly and generically referred to as "the Business of Law" is probably not among them, any more than one could register and thereby prohibit the use of "the Rotating of Tires," "the Theory of Evolution," or "the Certificate of Live Birth."  I would further venture to say that the likelihood of anyone concluding that my use of the phrase "Business of Law" is in any way associated with, condoned by, to be confused with, or to be construed as a commentary on Mr. Poll and/or the services available through him and his firm is statistically equivalent to zero.

I have no knowledge or opinion concerning Mr. Poll, his experience, his qualifications, or the value of the services and counsel that he may be equipped to provide to those as wants them.  I encourage anyone who is interested to make inquiry directly to Mr. Poll, or to buy one or more of his numerous books, many or which are published under the imprint of the American Bar Association—which has emblazoned the trademark registration symbol on the cover of two out of the three volumes in which Mr. Poll has used "Business of Law" as part of his title.  

For my part, I will continue to use the phrase "Business of Law" whenever it is appropriate to do so.  It is a perfectly good phrase to describe the thing that it describes.  My use of "the Business of Law" in this post, in any previous post, in any future post, or in any other communicative context is based entirely on the settled, primary meaning of that phrase as it has been recognized and understood in these United States since at least 1921, and is not to be taken as having the slightest connection of any kind to Mr. Poll or his firm, except insofar as Mr. Poll and his firm are expressly mentioned, as they have been in this post.

Now, if you will excuse me, I will return my attentions to the Practice of Law.

Blather. Wince. Repeat. [Mutterings on Marketing]

Running here, running there,
Keep it moving, sonny, don't despair
Because the next one'll be 
    The next one'll be
        The next one'll be
            The best one of the year . . . .

    — Alan Price, "Sell Sell," from O Lucky Man!

 

I would like to write a bit about the Business of Law [feh!] and about law firm marketing, but before I can do that I suspect I should make something of a confession.

You see, here's the thing: I was once a law firm marketer.  

It was a good long time ago, but so engaged was I with the marketing of legal services that I even served for a time on the Board of Directors of what was then—this was in the early 1990s—the National Law Firm Marketing Association [NALFMA], which has since become the Legal Marketing Association [LMA], whose just-ended annual meeting is one of the triggers of this post.  

My story in brief (skip ahead if you wish): Around 1989 or 1990, certain senior partners in the mid-size insurance defense firm in which I was an associate (and eventually a junior partner) fell into the orbit of certain business consultants and were "bit" by the marketing bug, and by the notion that with the right mix of public relations, new logo, and the like, new and lucrative business would fill the firm's coffers to the brim.  In part because I sensed an opportunity for personal advancement and in part because, in a spirit of youthful humility, I thought that those partners and their consultants were making a hash of the (potentially successful) project and would benefit from the remarkable insights that I was sure that I alone possessed, I became an enthusiastic volunteer and participant.  That participation led me to the local chapter of NALFMA, to attendance at some NALFMA annual meetings, and somehow or other—looking back, I am genuinely unable to account for it—to my being asked whether I might wish to serve on the NALFMA Board of Directors.  I said yes, and I served for nearly two years (est.) before voluntarily withdrawing from the Board circa 1994. 

My principal reason for leaving NALFMA was that I had also recently left my former firm, with two other attorneys, to start our own small firm, and that I needed to devote time and resources to the care and feeding of that practice. With the benefit of hindsight,  I can see now that I had a second motive: the discovery that I have a deep-seated dislike for capital-M Marketing of most any kind, and in most any context.  I do not take any particular pleasure in doing it, and I take active displeasure in being on the receiving end of it.  For instance, I am confident that some particularly infernal torment must be reserved for those who will not simply accept "no" or "not interested" at face value, and who feel obliged to continue a conversation and to "meet my obections," as though I did not mean what I said or am too dim to know what I "really" want or need—which is, naturally, whatever they are trying to peddle to me.  

(I hasten to add that my distaste toward Marketing does not translate into a personal dislike of marketers: many of the people I got to meet and work with in connection with NALFMA were a pleasure to know, intelligent and professional, albeit intelligent and professional in the  practice of what must be regarded as Dark Arts.)

Two lines of online discussion over the past week have drawn me back to thinking about marketing and about its uneasy relations with the legal profession.  

First came the story of Joseph Rakofsky*, an attorney from New Jersey, admitted to practice for less than a year, who undertook to defend a murder case in the District of Columbia.  Rakofsky's performance for the defense, including an opening statement to the jury in which he conceded that he was trying his first case (or at least his first murder case), so dismayed the trial judge that the court declared a mistrial on the spot on the ground that the defendant was receiving patently inadequate representation.  That would have been trouble enough, but Mr. Rakofsky had touted the mistrial as a positive outcome on Facebook, saying nothing of his own poor performance as the cause.  Several bloggers, particularly criminal defense bloggers, inquired further and found that Rakofsky had been busily engaging in creating online appearances concerning his experience and qualifications that are not borne out in reality.  Among those investigating and commenting were Scott Greenfield, Brian Tannebaum, and Eric Turkewitz, and a good collection of relevant links, with thoughtful commentary on the use and misuse of "expertise," can be found on Antonin Pribetic's Trial Warrior Blog.

Joseph Rakofsky has become, at least until our attention wanders elsewhere, the poster child for the disconnect between selling legal services and ethically, capably providing them.  The website for The Rakofsky Law Firm—"financialcrimelaw.com", which has disappeared under the past week's scrutiny—featured a video of Rakofsky in front of an American flag asserting total devotion to his clients, as well as claims of his status as a "specialist," the implication that he was practicing in New York when he is only admitted in New Jersey, and more.  As Carolyn Elefant observed, the site "[broke] nearly every advertising rule in the book", and many other details, to the discerning eye "scream[ed] out 'fly-by-night.'"  (Another video, featuring Rakofsky's electric guitar stylings while he was still in law school, is still to be found on YouTube, accompanied by an invitation to "Make contact with me (in NYC) after I pass and am admitted to the bar for your criminal defense!")

The underlying, dumbfounding details of how it all came about were still emerging todayy, as reported by Jamison Koehler.  Among the new revelations: that Rakofsky could be found in New York courtrooms (recall that he is apparently not admitted to practice in New York, the Wall Street address used on his website notwithstanding) offering his services to defendants' family members.  If true, it ranks on the scale of "marketing" practices somewhere even below ambulance chasing.  And, oh yes, he is reportedly refusing to return the retainer paid him in the murder case in which he was removed.

Meanwhile, the Legal Marketing Association held its Annual Conference last week at Walt Disney World in Orlando, Florida.  The event came with its own Twitter hashtag, #LMA11, which I began monitoring after it came to my attention via Brian Tannebaum's post linked above and his running commentary in his own Twitter feed.  The attendees' Twitter commentary came in two varieties.  First, as is to be expected given the nature of the event and the nature of Twitter, many of the comments boil down to how much fun everyone was having.  The second strain featured remarks on what was being said during seminar sessions and attendees' own thoughts on those subjects. What struck me particularly about the second, more substantive, group—apart from its relentless Positivity and Upbeatness, it being the nature of conventions and conferences generally (and, again, of Twitter) that never must be heard a discouraging word—was how little has changed in the nearly two decades since I was involved with the organization.

Just as seemed to be the case in the early '90s, legal services marketing seems to be premised on importing the supposed best marketing ideas and practices from other fields.  "How can we implement a social media strategy?" is simply the 2011 equivalent of 1992's "Should we think about setting up one of those 'web sites' we've been hearing about?", which in turn was the latest variant on "How can we build our mailing list database/distribute our newsletters/get our name in the press?"  Same old, same old, albeit today the unquestioning faith in The Tech seems more intense, and even less questioning, than ever. The core problem with importing practices from manufacturing or retail or even other service-related fields is, as always, that the law is genuinely different in that, so the theory goes, we have our clients' lives and livelihoods in our hands in a way that, say, Nieman-Marcus does not, and we owe lingering fiduciary obligations to place them first, even at our own cost.  We have a continuing obligation not merely to seem but to be qualified, diligent, and on and on.

Also clear throughout the LMA11 thread, and true I suppose from the dawn of time: legal service marketers, whether in-house or from the outside, share a laser focus on their own justification and continued employment.  Session after session at the LMA meeting appears to have emphasized the age-old question: "How do I prove to these ignoramuses with law degrees that I, the marketing professional, am of value to them so that I will keep my job/get and keep the big contract?"  Here is an example of the theme, drawn from a post-LMA11 blog post by marketer Nancy Myrland:

I tend to feel protective of lawyers and legal marketers.   You are my friends, my clients and my potential clients.   I’ve been in-house where you are, dealing with many of the joys, frustrations, challenges, changes and situations you have.   I seem to want to protect your reputations and brand.   In this spirit, I have a few ideas for my in-house legal marketing friends regarding what to do now that you’ve been here absorbing this wealth of business, legal and marketing knowledge.

It remains as true today as it did when I started in-house in 1997, and as true as it was during the 10 years I spent at Time Warner.   Marketing continues to be viewed as an expense by many firms, lawyers and CFOs.   There are many exceptions, and I bow to you for understanding the value of marketing.   However, it remains a marketer’s job to always [!] show and sell your value to the firm with real-life examples of how you bring more than brochures to the firm.

(Emphasis added.)  

Now, I have no quarrel with self-preservation.  Anyone, in any field, in any job, is understandably anxious to maintain his or her position, and legal service marketers have no less right to justify themselves than anyone else. That said, the fact that the discipline of "legal services marketing" is as much about the interests of the marketer as it is about anything else is part of the problem.  Marketers first market "marketing," and secondarily market their lawyers' services to the outside world, and both activities require those lawyers to divert their attention from their own clients.  Time and resources spent selling legal services means time and resources not spent performing legal services.  Clients benefit, if at all, from what their lawyer does for them, not from what their lawyer does while looking for someone else to also be that lawyer's client.

So, then: am I suggesting that "marketing" has any causal connection to the Joseph Rakofskys of the world?  Not directly.  Joseph Rakofsky didn't mess up a murder defense because he marketed himself.  He messed it up because he messed it up and had, it appears, no business taking it on.  But it is clear from his now-absent website that he had convinced himself that it was acceptable to believe, or not to care about, his own hyperbole, and that he confused claiming to be  a thing (a well-qualified criminal defense attorney) with actually being it.  And that, sadly, is the eternal essence of marketing: the marketing of anything requires persuading the prospect that he or she needs and wants what is on offer, regardless of whether what is on offer is actually what the client needs and regardless of whether the proffered service matches, in reality, the appealing description offered by the marketer.  If reality and appearance actually match one another, so much the better, but it is of no matter to the marketing transaction.  Get "butts in the seats" and sort the rest out after.  

As a marketer of himself, Joseph Rakofsky was actually a success: he got himself a paying client and, for the moment, still has his fee.  His reputation? Perhaps, in the long run, his license?  Lost or in peril, I suspect.  Or perhaps not: attention spans aren't what they used to be, and perhaps in time no one will know or remember.

What is my opinion of legal services marketing at this point?  Still, after decades, unsettled.  I am entirely uncomfortable in placing any reliance on marketing as an activity separate from the practice itself: in a perfect world, a lawyer would be qualified or not and accurate information on who was which would be absorbed through prospective clients' pores.  Not, as they say, gonna happen.  In this imperfect world, it is unrealistic to expect that client referrals alone will sustain most attorneys, and therefore it is to be expected that most attorneys will need to do something "marketing-like" to keep body and soul together, and to support their families or their love of a good claret (or both). The trick is to do those things without straying from the responsibilities that we took on when we chose this profession.

In the end, I am left thinking of legal marketing as rather like the poppies in The Wizard of Oz: appealing to the eye, but still "something with poison in it."

~~~

Photos [top to bottom]:

"Unique Selling Point" photo by photosteve101; "Shaking Man" sculpture, Yerba Buena Gardens, San Francisco, photo by Mike Towber; "Sell [video games]" photo by Pink Moose.  All photos via Flickr, used under Creative Commons license.

~~~

* Correction:  In the original version of this post, "Jonathan" Rakofsky was given at this point as the name of the attorney involved in the reported D.C. mistrial.  The correct name, which I had used everywhere else in the post, is Joseph Rakofsky.  The typographical error on my part was brought to my attention on April 23, 2011.  The name has been corrected.  I apologize for any confusion that may have been caused by my inadvertence, and I thank Mr. Jonathan Rakofsky for bringing the matter to my attention.

~~~