The conventional wisdom is to advise a client contemplating a defamation action against filing suit unless he is sure he can withstand the scrutiny of an angry adversary. Claiming a damaged reputation is a risky thing to do if your reputation is already questionable. Besides, merely repeating the harm one imagines done to oneself gives the world a second look at what you yourself perceive to be damaging and injurious claims.
So I read with care a new lawsuit filed in New York on behalf of a young lawyer named Joseph Rakofsky. He’s sued not just The Washington Post, but also a couple of dozen folks who blog about the law. Rakofsky claims devastation as a result of a story published in the Post in April, and then widely commented upon by bloggers. The Post published a story claiming a Washington, D.C. judge had mistried a murder case as a result Rakofsky’s mishandling of the case, including claims the young lawyer had pressured an investigator to tamper with a witness. In the days and weeks that followed the story, the blawgosphere, that is, lawyers and others who blog about the law, erupted with stories about Rakovsky, all denigrating him.
Rakofsky now claims it’s all untrue. His 72-page complaint is his apologia for his conduct in the underlying criminal case. If you read the writ, this young man, who only graduated law school in 2009, and who maintains an office in New Jersey, was retained in May 2010 by a District of Columbia family to represent a loved one in a felony murder case. At the time, Rakofsky had never tried a case. He packed his bags, and, according to the complaint, did a heroic job investigating the case, hiring a bevy of experts, and then stood in the well of the court this spring doing battle with the Government and a judge. Rather than the judge’s stopping the case because of the lawyer’s incompetence, as the blawgosphere suggested, Rakofsky asked for permission to withdraw due to disagreements with the client about trial strategy; the complain suggests this was a tactical boon to the client, as Rakofsky had forced the Government to disclose the identity of a confidential informant and other evidence.
I watched the blawgosphere flame out over Rakofsky in April, and almost joined the chorus myself. But a year or so ago I grew wary of the pack mentality feeding the commentary. A self-styled old guard has taken upon itself the task of policing the profession: folks desperate for approval or inclusion in the in-group jump on every bandwagon to score points and readership. It is a particularly vicious form of social networking pathology, only a step or two removed from the inane anonymous comments published by newspapers. Yes, it is great to be only a keystroke removed from publication, but, oh, what a sorry web we read when first we practice editors to leave.
I don’t miss the blawgosphere, and check a few pages every week or so, and with decreasing frequency: in the rush to have something to say, there's a lot of heat, but little light.
I have friends who have been sued in Rakofsky’s suit, so I am ambivalent about this litigation. If his allegations are true, there may well be troubling coming for some bloggers: nosing snout up to the trough without so much as a thought about whether allegations are true is risky business.
Rakofsky seeks an order that each blogger and news organization take down stories reporting on his as incompetent and unethical. Oddly, the suit appears not to ask for compensatory damages for Rakofsky’s damaged reputation, although that may simply be careless editing by his Manhattan lawyer. Reputations are at stake in this lawsuit. It will be interesting to see which bloggers simply pull their stories to avoid the expense of litigation, and which will hang in and fight the case, defending the truth of what they have written. The blawgosphere slapped at Rakofsky, now he has slapped back. Let’s see who blinks first. I am betting Rakofsky will do so -- he has the most to lose, and no friends to hiss at his enemies with self-righteous glee.