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From tiny ethics mishaps, do major missteps grow?

by Carolyn Elefant on April 3, 2011 · 13 comments

in Ethics & Malpractice Issues, Mistakes/What NOT To Do

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Back in March, I pondered whether there might be a correlation between cutting little ethics corners on seemingly insignificant matters like advertising and committing major ethics breaches like pilfering from trust accounts or prejudicing a criminal defendant’s rights on the other. I actually hoped that my observation was wrong – after all, if a slip-up on advertising rules is a harbinger of worse conduct to come, then disciplinary committees might just be justified in bringing down the hammer on those who run afoul of advertising rules. That’s certainly not a result that I favor. But now, yet another case has emerged where beneath a lawyer’s major ethics misstep lies a series of tiny ethics mishaps.

My local colleague, Jamison Koehler, was first to post about Joseph Rakofsky of The Rakofsky Law Firm, who was dismissed by a Superior Court judge for a performance that the judge described as “below what any reasonable person would expect in a murder trial.” [Source: Washington Post]. As it turned out, Rakofsky was not licensed in DC (though he did retain local counsel) and had never tried a case, even though, as Jamison points out, Rakofsky’s website describes himself as a “specialist” in criminal law.

Ultimately, the judge declared a mistrial (which Rakofsky actually boasted about on his Facebook wall rather than ordering Sherlock Grigsby, Rakofsky’s local counsel and attorney-of-record to take over the case. Jeff Gamso,wondered why. After all, Grigsby said that he disagreed with Rakofsky’s approach but that Rakofsky wouldn’t listen to him.

As Gamso writes:

Part of the problem was that Deaner wouldn’t listen to Sherlock.

After Friday’s hearing, Grigsby said that Deaner’s family hired Rakofsky and that he and Rakofsky “disagreed more than a couple of times” on how to proceed with the case. “He was the attorney of record. I would offer what I thought was the best advice, and he wouldn’t accept it,” Grigsby said.

Let me be clear.

This does not happen.

Oh, not the part about defense counsel disagreeing with each other. Or the part about lead counsel being grotesquely incompetent. Sadly, I have to report that that happens with some frequency. And it’s not unusual for judges to get pissed off at incompetent bozo lawyers who screw up trial procedures. Especially when they openly disagree with co-counsel and piss off the client. But taking them off the case? During trial? Declaring a mistrial?

That does not happen.

I decided to do a little digging, and guess what? Grigsby is listed as an attorney or specialist on Rakofsky’s law firm page. Since there’s no disclaimer cautioning that Grigsby is independent or not a member of Rakofsky’s firm, seems to me that the judge had no choice but to treat him as such and thus impute to Grigsby some culpability for Rakofsky’s abysmal performance.

But is Rakofsky’s conduct surprising? After all, his website breaks nearly every advertising rule in the book. Rakofsky refers to himself as a “specialist” though most bars prohibit this designation. He lists other lawyers on his website, holding them out as members, though that wasn’t the case for Grigsby. Rakofsky is licensed in New Jersey, yet his website has no address and according to this listing he lists his address as New York, though he’s not licensed there according to the Post. Plus- and even though this isn’t an ethics issue, the gmail address and 877 exchange scream out “fly-by-night.”

Most lawyers – indeed, myself included – ignore our colleagues’ advertising-related foibles, figuring that at worst, they make themselves look bad or set themselves up for an ethics charge. Here, Rakofsky’s case is a wake-up call: lawyers who fail to heed our professional ethics rules, either by intent or ignorance, will likewise flout those rules to the detriment of their clients. In Rakofsky’s case, a watchful judge spared his client. But who knows how many other clients will suffer if we lawyers don’t keep watch on our colleagues?

More commentary, including a screen shot of Rakofsky’s victory lap on Facebook, from Eric Mayer at Military Underdog and Scott Greenfield at Simple Justice and
Brian Tannebaum at My Law License.

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