Resonating Rakofsky

Techdirt, the website of geeks everywhere, discovered  Rakofsky v. Internet yesterday, proving yet again that it’s a source for cutting edge news and information.  This prompted Mark Bennett, who has maintained a  compendium of Rakofsky posts, to note :

Twice as many Google cites for Rakofsky in May (post-lawsuit) as in April (pre-lawsuit, post-Deaner case). #TheRakofskyEffect

And that prompted Antonin Pribetic  to note that he coined the phrase, The Rakofsky Effect.  This is the lawyer version of the Streisand Effect, which is widely understood as one of the fundamental mistakes made in challenging speech on the internet by threats, causing not only failure of the primary mission, the elimination of unwanted speech, but the creation of a larger problem, the magnification of the unwanted speech and causing it to be disseminate far wider in reaction to the effort to shut it down. 

The Rakofsky Effect is the lawyer version, having gone beyond the mere cease and desist letters that Babs attempted, much to her dismay, but to initiate a flagrantly absurd lawsuit against much of the internet.  Of course, the amended complaint was premature, as the Rakofsky Effect had only begun, and there are now many more putative defendants out there trumpeting the lesson.

And that’s the point:  The lesson.  This isn’t happening for the sole benefit of one young, foolish lawyer, or even his slightly more experienced but similarly foolish counsel in the lawsuit, whose breath of arrogance, though astounding, will surely leave him wishing he never rented that Regus office on Wall Street to pretend that he’s a high priced Wall Street lawyer who was just slumming when he advertised in the Pennysaver.

Few matters offer more lessons than this one.  It offers lessons about competence.  Lessons about marketing.  Lessons about responsibility, honesty, integrity.  About greed.  It offers lessons about hole-digging and making a bad situation worse.  For young lawyers, particularly the Slackoisie, this is a case study that should be taught in every law school in the country.  Any lawprof teaching professional responsibility who neglects the Rakofsky Effect has not fulfilled his duty.

What this is not is about a large group of experienced and accomplished lawyers beating up on some dumb kid.   Dan Hull argues that the blawgosphere’s coverage of this matter has made blawgers look “Small, Prissy, Idle, Low-Rent & Mean.”  Why he’s felt it incumbent upon himself to take up arms here is hard to fathom, given that it’s not a reflection on him and it’s a curious decision to become a self-appointed scold of those more knowledgable and involved. 

If this was about beating up on young Joseph Rakofsky, however, Hull would be right.  It would be unseemly to beat up on so unworthy an adversary.  But as understandable as it may be why, from a safe distance, it might appear this way, it’s not and never has been.  It’s all about the lessons.

There are still more lessons learned, and to be learned, from this sordid affair.  As  Brian Tannebaum has noted, there has been a battle brewing between “lawyers” selling marketing, technology and social media as the future of lawyering.  While hyping the sale, the lies, the deception and the magic bullet cure-all for lawyer wealth and prestige, their game is laid bare by their failure to grab hold of the Rakofsky Effect and adopt its lessons.  Their silence reveals that they are the progenitors of this type of disgraceful conduct, and their fear that the Rakofsky Effect will reveal the emptiness of their claims and harmfulness of their message.

To the extent that the cheerleaders of marketing claimed to tacitly believe that competence and integrity were too obvious for mention as they taught lawyers how to play the internet for fame and fortune, their silence reveals a lesson that can’t be ignored: They care only for the self-promotion, the client be damned.

Rakofsky v. Internet has already become the bar by which lawyer behavior, in the courtroom and on the internet, is judged.  It’s lessons are legion, and to ignore them is counterproductive, if not revealing in itself.  Don’t get caught up in the trivia of what one dumb kid did, or the details of a lawsuit destined to be the bellweather of bad legal judgment.  Focus on the message that this offers to every lawyer, young and old, about how this powerful sword has two edges, one that can cut a fool’s legs out from under him and take a horrible situation and make in unimaginably worse.

These are lessons that must be told.  Tell them. Tell them often, clearly and loudly.  Let this be the last time a lawyer does what this young lawyer did. There is much good that can come from this sordid affair, and we would be remiss not to make that happen.  It’s all about the lessons.

30 comments on “Resonating Rakofsky

  1. Dan Hull

    Good post. Really fine. But maybe go back and read what I’ve written and “twitted”, Scott.

    Three things–even while there a few more issues here (like Blogger Defendants making this case more expensive than it needs to be):

    1. Over and over again, and because it’s in every robust business practice, “corporate defense” lawyers routinely work on business/civil side of 1st Amendment. I have since 1981. (For what it’s worth, I’ve written law review and non-law articles about it beginning over 25 years ago. Maybe not worth much–but I’ve wired myself to see issues pretty fast when/if they come up.) First Amendment comes up in a business practice several times a year. E.g., employment defense, trade defamation, public figures, representing media (which we’ve done a lot), pissed-off employees, defamed execs and even in a Lanham Act incarnation. First Amendment is always “there”–and business lawyers do learn some things about this area. So Blogger-Defendants who flail away at this case in print are hardly “more knowledgeable” than (a) me, (b) any good business lawyer and (c) any half-assed business lawyer/hack who ought to be selling shoes or working with street people. Most of the named CDL defendants in this case know A LOT less about how to evaluate JR’s case than the foregoing forms of the lawyer animal.

    And you only need read the complaint. On the merits, JR suit is one of the silliest lawsuits ever brought in 500 years. On joinder, jurisdiction, merits, liability & damages. A Dink Case. Doesn’t get more frivolous. Will be lots of sanctions of all manner against plaintiff JR/his lawyers. Some of the Ds even have a shot at attorney fees. Do most of the JR defendants know all this? Only the major/mainstream insitutional Ds seem to get it. Those Ds aren’t writing much . There’s a reason for that. Talk to non-CDLs about it. It’s not Epic or Important. People are panicking and guessing. So:

    2. Talk to The Uninvolved for a better take. It’s maddening to be a defendant; I know that. But talk to biz lawyers not sued in this case.

    3. The worst and most painful moments in all this? Calling out “silent” bloggers for not beating upon/writing about JR. Not just small. Tiny, embarrassing to watch–and worse than JR on his worst day. McCarthyism Lite and Jr. High. This is not Cuba, Iran, China.

    PS (to my initial stab at this). The other Lessons here? On the very real dangers of SM consultants and non-Mentoring? Everyone GOT those lessons in April. Hit Everyone over the head. Scott, your first posts (on April 4 and 6; lots of people read them at the time) after DC Superior Court mistrial on April 1? Admirable, spot-on & exemplary. Said about 95% of what needed to be said. But you and 3 or 4 others said it well & comprehensively by week of April 4. No need to beat such a non-subtle Moment of Badness and Low Values to death. When posts kept running into the 2nd and 3rd day after the Judge’s order, I felt like I’d woke up in a pool of eager-to-please Lemmings. It’s still going on.

    We Practicing Lawyer-Bloggers are better than that. Can’t keep people from doing it–i.e., keep flying their colors in print–but we can we hunt around for Some Other Badness? This one is Too Easy. And Too Bad.

    Dan

  2. SHG

    My first reaction to your comment was “TL;dr,” but as a courtesy, I plodded through it.  My initial reaction was correct.

    You have made your point innumerable times already. It does not become more persuasive by repetition. You’re entitled to your opinion, and others are entitled to disagree with you, and they do. At what point does it occur to you that your opinion has been heard and is unpersuasive?

  3. Steve

    Having suffered the pain of reading this rambling and incoherent comment, I have only one question. What could possibly make this asshole think that he’s entitled to tell the rest of the blawgosphere that they’re all wrong because he, self-appointed MissManners, has decided he’s had enough.

    The only thing that makes sense is that he’s a monumental pussy, and is trying to justify his cowardice by attacking others.

    And a passive-aggressive psycho.

  4. Ken

    “This is not Cuba, Iran, China.”

    I really, really despise this line of rhetoric, which promotes ignorance about basic free speech principles. Cuba, Iran, and China do not deal with “incorrect speech” through criticism. They react through actual oppression. Free societies decide not to impose official sanctions on “bad” speech because they believe the marketplace of ideas is better suited to police itself through return speech. That’s exactly what is happening here — including your criticism of the criticism, up to the part where you rhetorically shit the bed and go all OMG TOTALITARIANISM. We are not China, Cuba, or Iran precisely because we are free to engage in this sort of vigorous criticism.

    Sarah Palin suggested that the media was violating her First Amendment rights when it criticized her. Don;t be Sarah Palin.

    The junior high school analogy is much more reasonable.

  5. Mike

    Hull’s comment seems to be: He has a lot of “courage” when making generalized rants against the “uncultured” (as defined by him), work-life balance, and anonymous blog comments. Yet when someone is threatening lawsuits, we should all shut up.

    Yep, sounds like a coward to me.

  6. Dan Hull

    Actually, Scott, that’s the first time I made any of the points about the merits of the case of more than a sentence. And I didn’t think my opinions on this have been heard much at all. I do get generally “private” comments calls/e-mails/direct Twitter supporting my takes on this (there are a few issues here). Always just to me. Maybe they want shrill & bullying bloggers to like them.

    And I also wrote the comment because surely, I thought, I did not make myself clear in Twits/one post. If I did previously, that’s great. And it’s sad.

    You guys have painted yourselves into a corner by not investigating or thinking much before you hit the keyboard. It’s like there’s no way out for you.

    In short, a lot of folks seems to have needlessly panicked. Now they’re stuck with it.

    And Scott, you can do better. You’re playing a little to law cattle and admiring spineless kids: The “Steves”.

    “Steve”: Glad you could add to the conversation. I recognize your style. How’s that job in West Virginia going? a month once. Dan Hull

  7. SHG

    No doubt you are the secret hero of all the important people in the blawgosphere.  And those who disagree deserve every offensive thing you have to say about them.  They are all law cattle and admiring spineless kids. You are important.

    Or perhaps you might just be wrong and would do better to stop attacking all those law cattle and admiring spineless kids.

  8. Dan Hull

    Point taken, Ken. I thought about that. But calling people out on penalty of “being shunned” was low-rent. Smart but somewhat weak people (they’re lawyers after all) even fell for it. “Oh, me, too. Sorry. I’ll show my solidarity with y’all.” That’s some serious heavy-handed stuff. It worked, too. But you can garner support in smarter and still-noble ways.

    Being “Right” on a simple issue and beating it to death. It’s awfully expensive, isn’t it?

  9. SHG

    That’s interesting, Dan.  Perhaps you could have made your point, that you thought it better for people to move beyond Rakofsky rather than spill so many words on someone so unworthy of attention, without feeling compelled to call names and attack those who chose to do so.  But you didn’t.

    Granted, chances are extremely good that no one would have heeded your wisdom, but the fact remains that you’ve attacked others because they didn’t adhere to your sensibilities.  And now you are beating it to death, attacks included.  Sound at all familiar?

  10. Ken

    We disagree on some larger points as well:

    1. Lawyers taking on cases for which they are not qualified, and clients being harmed as a result, is a long-term problem, made recently worse by modern marketing ethos, that teaches that you should take any case you can get through SEO.

    2. Frivolous SLAPP suits are a pervasive problem, and a long-term favorite subject of law bloggers, and rightly so.

    You might have a point if Rakofsky had screwed up, faded into the woodwork, and then popped up next year at some humble job somewhere, and lawbloggers had pursued him and outed him again and kept the story prominent. But he didn’t. He proclaimed that he’s an awesome lawyer and doubled down.

    The problems of client abuse through malpractice and SLAPP suits are serious and pervasive enough that the lawbloggers (who, combined, get fewer hits by TMZ by orders of magnitude) are not, in my view, paying excessive attention.

  11. Antonin I. Pribetic

    Dan,

    Criticism of criticism is pedantic. You pride yourself on setting an example for both young and experienced lawyers and rally them to aspire to excellence and to eschew mediocrity. You rail against the Slackoisie and call those who are beneath your lofty professional, ethical and moral standards “cattle”, “filth” and “Steves”. There is something beyond all the rhetoric and bravado that needs to be said. Your post was disloyal and disingenuous. Full stop. I disagreed with you then and I disagree with you now. As professionals, we can agree to disagree. We are not, however, friends in any sense of the word. You are entitled to your opinion, no matter how unsound and deleterious it may. And it is unsound and wrong for many reasons, the most important of which is that you offered unsolicited advice to others without considering that the implications to the defendants who spoke up when others fell silent. Unlike some, we did not bury our heads in the sand, without cavil or argument. The paint is drying and the moral corner you inhabit is rapidly shrinking in size. Move on.

  12. BRIAN TANNEBAUM

    Hi everyone, Dan, Scott, “Steve.”

    I’m the bully. I’m who Dan won’t mention by name. I’m the one who first started calling out by name those “legal bloggers” who intentionally remained silent on Rakofsky. The Niki Blacks, Adrian Daytons, Larry Bodines, and Susan Cartier Liebels of the world who’s mission is to make money from lawyers through tech, social media and marketing advice. While they call themselves “lawyers,” they show themselves as otherwise when controversy appears.

    When all their bad advice results in the biggest marketing failure in recent history, they say nothing. Niki and Adrian are probably fearful because they are in New York, and all together, these “bloggers” and others like them likely know no competent lawyers who can represent them. They probably don’t even have the money to pay even the costs of a lawyer who may help them.

    I may be one of those Hull described “CDL defendants in this case” who “know A LOT less about how to evaluate JR’s case than the foregoing forms of the lawyer animal,” and I’m happy to be a lawyer who knows more about convincing 6 or 12 people that the government is full of shit than a lawyer who can pen a motion to delay some irrelevant civil matter, but the case and the issue is “Epic” and “Important.”

    No real lawyer (even a real stupid CDL lawyer like me Dan) I know is “panicking and guessing” either. Nor is it “maddening to be a defendant.”

    I’m sorry Dan that “the worst and most painful moments in all this” have been “calling out “silent” bloggers for not beating upon/writing about JR,” but it got you to say something.

    You may find it “embarrassing to watch–and worse than JR on his worst day,” but I will continue to do it. I may start doing it 9 times a day.

  13. Mike

    Who, by the way, is “panicking”?

    Hull’s comment reminds me of Norm’s post on Rakofsky, which asked, “Who will blink first?”

    Are you guys serious?

    As if we’d blink or panic…because of Rakofsky?

    What is wrong with you two?

  14. SHG

    I suspect the answer is self-aggrandizement at the expense of others.  In order to make themselves better, they need to manufacture false attributes for their targets.  Whether or not this is projection is another matter.

  15. David Sugerman

    I intended to stay out of this. I penned an early blog post after the suit was filed. I am not part of the defendant-group. I know a lot about plaintiffs civil practice, impact cases, and complex litigation.

    I suppose Dan might view me as one who piled on. Not that it matters. In wrote about the case early on for several reasons. First, I teach and mentor young trial attorneys, and I wanted to note the teachable moment. Second, while I doubted that many of the named defendants feared the frivolous lawsuit, I wanted to provide support and reassurance to like-minded colleagues targeted by the idiots. And I wanted the idiots to know that lawsuits don’t chill critics but instead throw gas on the fire.

    I suppose that the Dan/Norm Pattis critiques raise worthwhile questions about whether we who blog about this topic are beating on a hapless schmuck or–worse–assembling as a lynch mob. I don’t buy it for reasons better articulated by SHG and Antonin, among others.

    When the young foolish lawyer who filed the case and his client dismiss the matter, I imagine this will fade. It should not before then.

  16. Dan Hull

    Nah, Dave you can pile on. It’s not like this is a vote.

    And I even like your view of JR; fine, since it doesn’t seem to have taken over your life.

    I’m a bit surprised at all this. I thought my first comment above was at least meritorious–and should have been compelling to lots of you. Seems like quite a few different past & present agendas–some JR, some not, some real “personal”–are going on here. Not sure what Norm Pattis wrote–but I will read it.

    And lots of “name-calling” and “conclusory statements” (esp. re: anon writers) have gone on at this blog since 2005. Not allowed anymore?

  17. SHG

    And yet the fact that no one found it “meritorious” hasn’t deterred your certainty that you are right and everyone else is wrong. You show admirable tenacity, but you should be very cautious about whining about name-calling, considering that you are responsible for most of it.  Whining is unbecoming.

  18. Dan Hull

    1. I like your point about JR “Strutting Around” (i.e., Facebook) after his disgrace. It’s a good point–and one of the only ones out there on overdoing JR that IS good. It also dovetails into the SM (“I am what I cyber-write”) point. Still, re the Strutting: What else could you expect from a from a guy who endangered his client and sullied the DC Superior Court?

    2. But this suit, Ken, does not even rise to level of a Very Bad SLAPP suit. Apples and Oranges. Bad incompetent suits like JR’s are not daily but have been around for decades. You call them “Thanks-asshole-plaintiff-for-the-attorneys-fees-sanctions-$” suits. These suits are less than SLAPP suits. They have no legal merit whatsoever; they not succeed in chilling speech; they never have. They’re just–sorry–Dumb.

    3. Finally, the overall SEO/SM lesson is too obvious in all this to merit so much ink. Maybe “Get Small” on someone else and then bully the younger and/or more chickenshitlawyer-bloggers into writing something new and different? :)

  19. Dan Hull

    Scott, things aren’t that black & white. This isn’t a vote. Some people did find some of my comments reasonable or compelling. I think you did, too.

    Overall, however, you’ve made it hard for most people with any view “other than the posse’s view” to have a discussion here. Congrats. Keep flying the colors. You’ll attract like-thinkers, anons and angry folks.

  20. Mike

    I’m more bewildered…well, not with Norm. Norm wanted to take a shot at the guys he views as being on the other side of some blawgospheric split. Given that he knew I was sued (as we talked about it beforehand). If he thought others would blink, he knows I wouldn’t. Still, his motivations are explainable.

    Hull’s position, however, makes no sense. Rakofsky should symbolize everything he views as awful about the profession. Young lazy lawyer screwed up a client’s case…What About Clients, right?

    If Hull had said nothing, that’d be understandable. Not everything needs to be written about by everyone. Plus, people get busy, and we blog for free. Write what fancies you.

    Yet to take Rakofsky’s side? That’s a very bizarre decision.

  21. BRIAN TANNEBAUM

    “I thought my first comment above was at least meritorious–and should have been compelling to lots of you.”

    Reminds me of a famous song by a famous band: “IS THERE ANYBODY OUT THERE?”

  22. SHG

    Yes, this isn’t a vote. It’s not a posse, or a conspiracy, or piling on or ganging up.  Each view is that of one individual, who individually disagree with your view.  Your initial comment turned this into Hull against the world. Your choice, no one else’s.  This post wasn’t about Dan Hull, until you made it all about you.

    There are a number of errors in your thinking, but beyond your substantive errors, there is the error in being the person who is attacking the defendants in the case, attributing to them bizarre traits and thoughts, like panic, all of which does harm to the defendant and comforts the plaintiff.  And yet you can’t grasp why people aren’t thrilled to have the discussion you want to have?

    Nino explained it to you. Mike explained it to you. I explained it to you. And yet you persisted. And now you can’t understand why everyone didn’t embrace you?  And here you go back to name calling, “attract like-thinkers, anons and angry folks,” because they didn’t agree with Dan Hull.

    We can all explain it to you, but none of us can understand it for you.  Your inability to understand is the problem, but it’s your problem.  But consider the comfort you give to those who want to see defendants in this case attacked. You, alone, attack and persist in attacking. You have done as much harm to others as you possibly can, and can’t understand why they don’t admire you for it?  You have made yourself everyone’s problem.

  23. SHG

    Perhaps the SEO/SM lesson is obvious to a fellow as experienced, erudite, wordly and knowledgeable as a Dan Hull.  But then, such a person isn’t in need of the message in the first place.  Rather it’s the next Rakofsky, the young lawyers who populate the scamblogs, who ask on listservs whether they should hire the SEO scamster or think Alexis Neeley would make a great life coach, who need to be told.  They aren’t as brilliant as a Dan Hull, and need the obvious explained to them.  Every day, a new one discovers the blawgosphere, and doesn’t read the old posts to catch up.

    Some blogs repeat their message over and over, like how “clients are the main event,” or the some 12 step program for lawyers.  We all have issues we believe to be important enough to emphasize, even repeat.  Even if they are obvious to someone like Dan Hull.

  24. Jeff

    It is ironic that this compelling back-and-forth set of comments (which has probably attracted a whole lot more readers than Dan Hull’s original post) perhaps in a small dose has created a Rakofsky effect of its own.

    By the way, I do very much like this site, and Popehat, and MLL, and C&F, as well as WAC/WAP, and there’s nothing better than seeing the bloggers engage each other this way. Each one of you is a class act. Keep up the good work.

  25. Nathans

    It’s not the case of the century, so far as defamation lawsuits go. But it really does encapsulate so many things that are wrong with the profession, that it’s hard *not* to talk about it.

    Bad lawyers hurt our profession every time they hold themselves out to be more than they really are, every time they get in over their heads, every time they put themselves or their bank accounts first. Their clients suffer, and the rest of us are tarnished.

    It’s not a pile-on, because it’s not about Rakofsky or Borzouye. It’s about all the unethical, incompetent or dishonorable lawyers out there.

    And as SHG said in the original post, it really is a great teaching moment for the potentially good young lawyers out there, who are at risk of making similar mistakes through ignorance, lack of education, or just not thinking things through carefully enough. Hopefully, if enough of us write about it, some of them might read it and think twice.

  26. mark

    Dan wrote: that the criticisms by those who scolded bloggers who were silent were” worse than JR on his worst day.”

    Just a dumb uninformed comment. I stopped reading Hull’s blithering after that.

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