Thursday, June 16, 2011

Lawyer who was called incompetent sues for defamation; he's having trouble serving all 75 defendants

Rakofsky v. The Internet
Citizen Media Legal Project (CMLP)

Date: 05/11/2011
Location: New York
Disposition: Lawsuit Filed
Legal Claims: Defamation; Intentional Infliction of Emotional Distress; Tortious Interference...
Legal Counsel
For plaintiff: Richard Borzouye, Esq.
For defendants: Eric Turkewitz, also a defendant, and Marc J. Randazza (for at least 14 individuals comprising 30 named defendants); David Brickman (for Maxwell S. Kennerly, Jameson Koehler, and Mirriam Seddiq)

In March 2011, Joseph Rakofsky represented a defendant in a murder trial in Washington, D.C. According to court filings, on April 1 he withdrew as counsel, leading to a mistrial, at which time the presiding judge made a number of unflattering statements about Mr. Rakofsky's performance at trial. The Washington Post originally reported on the mistrial; other publications, like the Washington City Paper, soon followed. From there, Mr. Rakofsky's story spread throughout the legal blogosphere, drawing comment from dozens of bloggers.

On May 11, Mr. Rakofsky filed suit in New York state court against the Post, the City Paper, and many bloggers who had written about him. At issue is the way Mr. Rakofsky's removal from the murder trial has been characterized: In his complaint, Mr. Rakofsky maintains that he left the murder trial by his own motion. Media coverage, like the Post article, focused on the judge's comments about Mr. Rakofsky's command of legal procedures, the fact that Mr. Rakofsky stated in court that he had never before tried a case, and an alleged email from Mr. Rakofsky to an investigator. The Post quotes the judge as telling Mr. Rakofsky that his trial performance was "below what any reasonable person would expect in a murder trial." A transcript of the judge's comments is now available. The bloggers sued by Mr. Rakofsky generally describe him as "too incompetent to handle the case," or otherwise suggest that the mistrial was due to Mr. Rakofsky's "inexperience."

Mr. Rakofsky initially sued 74 parties; the complaint often names both individual bloggers and their associated businesses. (For example, the complaint names both "The Law Offices of Michael T. Doudna" and "Michael T. Doudna, individually.")

The initial complaint contains two causes of action: (1) defamation, and (2) violations of sections 50 and 51 of the New York Civil Rights Law, alleging that defendants used Mr. Rakofsky's name and picture for commercial purposes without his consent.

On May 16, Mr. Rakofsky amended his complaint to add a count of intentional infliction of emotional distress and a count of interference with Mr. Rakofsky's contracts with other clients. The number of defendant parties also rose to 75.

As of June 1, 2011, some defendants apparently had not yet been served...

On June 4, New York attorney David Brickman, representing defendants Maxwell Kennerly and Mr. Kennerly's law firm The Beasley Firm, filed a motion to dismiss. The accompanying memorandum argues that Mr. Kennerly's blog post is a combination of opinion and fair reporting of court proceedings; thus, according to the memo, the case should be dismissed.

One June 13, Mr. Brickman, also representing Mirriam Seddiq and Jameson Koehler, filed two more motions to dismiss. The motions are mostly identical to Mr. Kennerly's motion.

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