That was the title of an email I received an hour ago. OK, I added the exclamation point — the email was titled only "Felony Arrest."

Other criminal defense attorneys — indeed, perhaps most attorneys — know what comes next. Was it from a client, or potential client, alerting me to crisis requiring my assistance? No. No, it was not. It was an unsolicited email from a legal marketeer I had never heard of before — from a fairly well know referral service — who wanted me to "discuss a relationship" in which I would pay for access to his firm's list of potential clients. Here, with certain deliberate omissions and alterations, is how it went:

Ken,

I do not believe that our two firms have met.

I'd like to discuss a relationship regarding the rights to our criminal law matters in the San Diego area.

Take a look at some of our current pre-screened (for financial capability) client matters in that protected territory.

To access our database:

• go to our site, societyforcornholingunsuspectingchildren.com;

• click on attorney log-in;

• your user name is rube2012;

• your password, is sucker2012;

• all lower case

• note that the password and user name are different

• click on the "all" cases line near the top of the home page;

• expires on January 4

Of course, I do ask that you not yet contact any of the clients.

Let me know whether it looks like a potential fit.

Cordially,

Mr. Feculent Q. Pus-Crust
Society For Cornholing Unsuspecting Children
[Los Angeles address and numbers]

My new pal Feculent is right about one thing — our firms have not met. That's because my firm is a law firm, and his firm is lodged, like a partially absorbed suppository, in the legal referral industry.

A few notes:

1. As is common with solicitations form the legal referral industry, the email title is intended to deceive. They do they same thing when they call — they tell the receptionist "I'm calling with a referral of a case" or "I need to talk about a criminal case."

2. My firm does, in fact, do work throughout California. However, most of our work is in the greater Los Angeles area. Our San Diego work is a few percentage points of our practice. Trying to pitch San Diego strongly suggest that dear Feculent is working off of some sort of automated lead generator. [Note: Feculent writes an enraged email back stating that he writes each pitch by hand and does not use any automated lead generator.]

3. Note that the misleading headline and the lack of a prominent opt-out provision puts the email squarely in violation of the CAN-SPAM Act.

4. I cannot imagine doing business with someone who seeks to initiate a business relationship based on deception. Even if I thought that using a legal referral service is palatable (which I do not) or made business sense (which I do not), I would never in a million years turn to a firm like the S.F.C.U.S., which approached me with a deceitful heart and a dishonest pitch.

5. I didn't use the password to look at their "pre-screened (for financial capability)" client matters. But the mere existence of a list of such things being put on the internet and emailed to potential customers is bizarre. I assume — I hope — that the list doesn't disclose actual names. Even if it does not, what type of criminal case has (a) a client pre-screened for financial ability and (b) such a leisurely pace that it can be summarized on a web site and used for marketing purposes to attract potential lawyers to represent the client, as opposed to, I don't know, immediately connecting the criminal defendant with a lawyer to protect his or her rights?

I feel the way I do when I get body-part-enlargement spam and fortune-in-gold-in-Nigeria pitches: what sort of morons respond to this? Isn't the model, in some ways, inherently self-repudiating? Isn't any lawyer who would respond to such a pitch inherently unsuitable to represent any criminal defendant?

Chickens come home to roost, and little piggies eventually come back to — I don't know. Wallow?

My point is that, sometimes, good triumphs over evil, and rights triumph over rights-violators. That occasional taste of sweet victory keeps the good guys up for the ongoing fight.

Today's example are two little piggies named Junius Peake and Susan Knox.

I wrote about them before, twice. In brief: Junius Peake was a professor at University of Northern Colorado. Student Thomas Mink wrote what was obviously, overtly, clearly, inarguably a parody (and, frankly, a rather mild and inoffensive one) about Professor Peake in a publication called The Howling Pig. Junius Peake reacted not like an adult, not as a university professor should, but like a loser. Junius Peake called the cops. And Deputy District Attorney Susan Knox, showing either wanton malice or a shocking lack or ethics, perspective, and mental ability, approved a search warrant for Thomas Mink's home on the theory that a university student's obvious satire constituted "criminal libel." Thomas Mink sued. Susan Knox repeatedly lost in the appellate court.

Now the last little piggie run weeee, weeee, weeeeee all the way home. As reported by The Fire, the Student Press Law Center, and the ACLU, Susan Knox (who, fortunately, is no longer a prosecutor [edit: see below]) has coughed up $425,000 rather than risk a third smackdown by the Tenth Circuit.

This is a gigantic victory. Rogue prosecutors, as a rule, escape without consequences when they violate even the most clearly defined constitutional rights. That's why the rare cases in which rogue prosecutors do face consequences are so sweet.

Congrats to Thomas Mink and his lawyers. Fighting prosecutorial miscreants can take many years, as in this case. But if we want the system to change, we need to be ready to chase bad actors like Susan Knox to the very gates of Hell.

Edited to add: in the comments, someone points out that she may be an AUSA now. CRAP.

Remember Joseph Rakofsky?

He's the guy — technically a lawyer — who chose to represent a man accused of murder at trial even though he had never tried a case before. This led inevitably to a mistrial and to a judicial observation that Rakofsky's advocacy was below the standard one would expect of a defense lawyer at a murder trial. News organizations and bloggers commented unfavorably. Stung by criticism, Rakofsky sued a wide swath of media outlets and internet writers, asserting feckless theories of defamation. Some stood defiant; a cowardly few caved.

So, remember him? Well, anyway, he's back.

Eric Turkewitz reports that reports that Rakofsky — now representing himself — has filed a gigantic motion seeking a dog's breakfast of court orders. Rakofsky wants to amend his complaint to add 14 defendants, he wants an order deeming his complaint adequate in order to head off motions to dismiss (no, really), he wants his former lawyer sanctioned, and he may want a pony and a pat on the head. The motion is a freakish mess, of a quality I would normally associate with mid-range pro se work — not as bad as a homeless psychotic pro se, but not as good as a reasonably articulate and experienced pro se, like a tax protester or something.

Several people have noted that Rakofsky seeks to add a cause of action for "internet mobbing." Now, you might say that there is no such cause of action, whether under New York law or anywhere else. But Rakofsky is more clever than you. Rakofsky might take the lives of helpless men into his hands when he is manifestly not qualified to do so, but Rakofsky has a certain low craftiness. He knows that the din of insipid anti-bullying rhetoric is growing steadily louder, and that some people are willing to turn their concerns about bullied children into broad and unprincipled doctrines that allow anyone to lash out at critics. Rakofsky is encouraged in this mindset by the leaders of his state. New York state senators are advocating "cyberbullying" legislation, and are premising it on the assertion that we need to revisit our dusty old notions of freedom of speech and come around to the progressive viewpoint that expression is a privilege, not a right:

And yet, proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege – a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated. British Philosopher John Stuart Mill long argued that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm from others.”76 His “harm principle” was articulated in an analogy by Oliver Wendell Holmes, Jr. (1841-1935), and still holds true today: “The right to swing my fist ends where the other man’s nose begins,” or, a person’s right to free speech ends when it severely infringes upon the safety and well-being of another.

In the case of cyberbullying, the perceived protections of free speech are exactly what enable harmful speech and cruel behavior on the Internet. It is the notion that people can post anything they want, regardless of the harm it might cause another person that has perpetuated, if not created, this cyberbullying culture.

You might say that this is mere jibber-jabber by a politician, not anything supported by law. But jibber-jabber can be terribly powerful and seductive when brought to bear on behalf of the nation's children, whether temporal or emotional. Why, even professionals nominally devoted to the vigorous defense of constitutional rights can be seduced right into insipid advocacy of hysterical and unprincipled tort remedies.

So: don't blame Rakofsky. He's just got his finger on the pulse. But a dilemma remains: what is the nature of this newly invented tort of internet mobbing? What are its elements? Well, with the encouragement and help of Scott Greenfield, I think I have come up with a set of elements worthy of a jury instruction:

INTERNET MOBBING: ESSENTIAL FACTUAL ELEMENTS

[Plaintiff] asserts that [Defendants] have committed the tort of internet mobbing and hurt [Plaintiff's] feelings really quite badly. The law recognizes that this is a shame. To establish that [Defendants] have committed the tort of internet mobbing, [Plaintiff] must prove the following:

1. That [Defendant] joined a group of three or more persons [including co-bloggers, commenters, and sock puppets];

2. That some member of the group made some use of the internet;

3. That the use of the internet including writing something about [Plaintiff];

4. That something could be described in one or more of the following ways:
a. Mean,
b. Hurtful,
c. Cruel,
d. Uncomfortably true,
e. Emotionally distressing,
f. Bad for business and/or branding or Google rank,
g. Just not kind;

5. That deep and progressive thinkers believe that the right of [Plaintiff] to be free of any such comment outweighs the right of [Defendant] to speak;

6. That at least one other member of the group committed an overt act endorsing or acknowledging the writing through a link, tweet, cross-post, thumbs up, +1, or lol;

7. That [Plaintiff] is, in at least one person's view, special, and thus deserving of the protection of the legal system from criticism or dissent.

Glad to be of help. There's a whole internet of butthurt potential clients out there. Better get cracking.

I'm sure you've heard of Righthaven, a copyright-troll Frankenstein's monster created in a boardroom rather than a laboratory. Righthaven's creators had dreams of making money by assigning newspapers' right to sue for alleged copyright infringement to a litigation entity. Righthaven came out swinging, suing bloggers left and right, in many cases for what was clearly fair-use quotations of articles.

Its efforts met in abject failure. In some instances it lost based on fair use defense; in other cases it lost when courts found that a newspaper couldn't confer standing to sue upon a litigation entity by transferring only the bare right to sue. The end result: Righthaven has lost repeatedly and is facing both sanctions and orders compelling it to pay the attorney fees and costs of its defendants. Frankenstein's monster is lumbering dumbly away.

But Frankenstein's monster was a pathetic and somewhat sympathetic figure, the occasional child-strangulation aside. Righthaven is not. Righthaven, now claiming to be close to bankruptcy, reaches for pathos but achieves only schadenfreude. In a recent Ninth Circuit "Urgent Motion" Righthaven begs the Circuit to stay the district court's order requiring it to pay the attorney fees and costs of a successful fair use defendant, complaining that it cannot secure even a $34,000 bond and that the defendant will soon seize its assets:

To date, Righthaven has been unable to secure a bond. The terms required by the bonding companies that Righthaven’s counsel has investigated and/or contacted are an impediment to meeting the district court’s stay requirement. The bonding companies are requiring what amounts to a full cash bond. In sum, the bonding companies ask for full cash payment, certain forms of collateral held by the company or irrevocable letters of credit be posted to obtain a bond in the amount requested. To date, Righthaven has been unable to satisfactorily meet these requirements in a manner acceptable to a bonding company. Due to the pending appeals and the stay of certain active litigation matters, Righthaven’s operating capital is being utilized to service its monthly operating expenses. As such, it is presently unable to allocate more than $34,000 toward the bond required by the district court to stay the Judgment pending appeal.
Absent posting the required bond or obtaining a stay of the Judgment pending appeal from this Court, Righthaven unquestionably face an imminent threat of irreparable harm through Hohen’s judgment enforcement efforts. As set forth in the motion for writ of execution, Hoehn is clearly seeking to seize and liquidate Righthaven’s intangible intellectual property assets. These assets include not only the copyrighted work at issue in this appeal, but the copyrighted works at issue in other appeals pending before this Court and those at issue in pending district court actions.

The technical, legal term for this request is JNOD, meaning "judgment notwithstanding obvious douchebaggery."

Righthaven's opponent in this is our friend Marc Randazza. One never knows which Randazza is going to show up to the party. Is it the entire legal brief about dicks Randazza? The ram has touched the wall Randazza? No, in this case, it's the literate Randazza, who picks up a mid-nineteenth-century American literature reference and beats the living shit out of Righthaven with it, having (as usual) more fun that one is supposed to as a lawyer. Read it and enjoy.

Things can't get much worse for Righthaven and its lawyers. Or . . . can they?

Sarah Deming, of Oakland County Michigan, did not enjoy Ryan Gosling's new movie, Drive.  Led on by a trailer that promised a light-hearted romp similar to the works of Vin Diesel, Deming instead got a film which "contained extreme, gratuitous, dehumanising racism directed at members of the Jewish faith, and thereby promoted criminal violence against members of the Jewish faith."

I was similarly distressed by the trailer for The Phantom Menace, which promised me a Star Wars movie.  Although I am not Jewish, it is not an exaggeration to say that after two hours of The Phantom Menace, I felt like an Auschwitz survivor, and I hated George Lucas as much as anyone ever hated Hitler.  Still, I have not sued over the experience.  Maybe one day, when I've recovered from the trauma.

So let me be the first to congratulate Sarah Deming for having the strength to vindicate her rights, and the rights of all Jewish people, against the makers of Drive.  Ms. Deming has filed a class action over the misleading trailer, on behalf of herself and all others similarly situated in the State of Michigan.

While a class action seeking only a ticket refund for everyone in Michigan may seem trivial in light of the virtual Holocaust Ms. Deming suffered, let's remember that it took the Israelis sixteen years to put Eichmann in the dock.  If Ryan Gosling hangs within the decade, it will be in no small part due to Sarah Deming's willingness to fight the good fight.

And let's not forget to congratulate Ms. Deming's attorney, Martin H. Leaf of Farmington Hills, Michigan.  It takes a man of rare courage to stand up to the anti-semites of Hollywood.  In fact, based on the court's scant records concerning this case, I wasn't certain that Martin H. Leaf of Farmington Hills, Michigan was the tireless warrior for victimized Jews who struck a blow on behalf of that beleaguered race.  I had to resort to the internet to be sure, but I have no doubt that the Martin H. Leaf who wrote this warning to America in 2010:

Most Israelis no longer care what this Arab or that Arab leader promises, because it is all hot air. Israelis no longer want to give land for peace or anything else for peace: They have been there and done that. The only thing that makes sense now is peace for peace, but that won’t happen either.

Imagine where the US would be had Israel not had the guts to take out the Iraqi nuclear reactor in 1981? Hint: There would be no independent Kuwait, and oil would now be over six dollars a gallon, since the US does not fight nuclear powers. That is a best case scenario.

America’s death wish, manifest by Reagan and Carter allowing Pakistan to go nuke, Reagan allowing Iraq to go nuke, Bush allowing Syria to go nuke, and Obama allowing Iran to go nuke, will soon come to fruition. A nuclear Iran is going to make this world a very terrible place to live in. However, by the time America realizes this, it will be too late.

is the same warrior against Ryan Gosling's 21st century Kristallnacht who represents Sarah Deming.

In 2010, Martin H. Leaf was censored by the editors of Commonweal Magazine for writing that wake-up call to America, just as, he warned, Hamas censors and murders Israelis.  One can only pray that the circuit court of Oakland County Michigan won't join the scoffers and mockers who have silenced this man in the past.

Potentially, very.

Just ask Albin H. Gess of the Costa Mesa branch of the firm Snell & Wilmer. He's making stupid and meritless censorious threats on behalf of Meghan McCain.

Continue Reading »

It's time to name and shame some scummy attorney comment spammers: that subset of the legal profession that either (a) thinks that comment spam is an appropriate way to market legal services, or (b) thinks that it isn't necessary to supervise marketeers. Both sentiments are wrong. A lawyer who thinks that leaving unwanted, irrelevant advertising on strangers' blogs reflects well on him is a jackass with poor judgment, and it's dangerous to hire a lawyer with poor judgment. A lawyer who thinks that she need not supervise how she is marketed by marketeers soon discovers that when you outsource your marketing, you outsource your ethics and your reputation.

This week's contestants:

1. The wig-wearers of Havillands & Co. Solicitors. They are the English kind of solicitors, not the prostitute kind, despite their having spammed us with six bloody pages of linkspam. What's their approach to the law:

Irrespective of the type of case and the stress involved, we go all the way if we are confident justice needs to be done.

How . . . very comforting.

2. "KEL Attorneys", the lawyers of Kaufman, Englett and Lynd, PLLC, who have deluged us with dozens and dozens of spam comments. In an effort at innovation, KEL Attorneys link their spam to pages about them or mentioning them rather than directly to their website. If your web site was as overpoweringly dull and generic as theirs, you might prefer to link to various yahoo! pages as well.

3. Mitchell & Mitchell, a Tennessee firm specializing in auto accidents and divorce, which is particularly useful if you run over your spouse in your car and he or she just stop giving you shit about it:

Mitchell & Mitchell provides high quality legal services to individuals, families, and businesses while specializing in divorce and auto accidents.

The implication is that when they work on anything else, they are strictly ass.

4. McAfee Law Offices, a California bankruptcy firm. Spammers are ethically bankrupt, so that fits.

5. Matorell Law, the firm of Frederick J. Matorell, who does not know the difference between a blog and a clumsy, butt-ugly SEO optimization page.

6. Hargrove & Associates, a personal injury firm, the chief selling point of which appears to be that its lawyers will drive to see you. Just say "outcall" and save some space, guys.

All of these firms, either through deliberate fuckwittery or abject failure to supervise marketeers, has sent us unwanted and unwelcome comment spam. Shame on them.

My typical offer stands: I will remove any name if the spammer (1) sincerely apologizes for his or her own spamming, if it was deliberate, or (2) publicly throws his or her marketeer under the bus.

What separates us from the Islamofascists, we're told, is that we support free expression and they don't. They get violently exercised by cartoons; we're above that.

Yeah, about that . . .

The Renton, Washington Police Department and Renton Chief Prosecutor Shawn Arthur aren't breaking windows or throwing firebombs or stoning anyone. At least not yet. However, they are using a kind of violence — the coercive power of the state — to retaliate against a cartoonist. Their methods may not involve overt force, but their motives are repugnant to American values of freedom of expression.

KIRO investigative reporter Chris Halsne broke the story. He learned that the Renton P.D. is butthurt over a series of YouTube animated cartoons poking fun at issues in their ranks — including, apparently, officers having "dating relationships" with suspects. The videos — apparently created on xtranormal.com — have unidentified cops and city officials engaging in discussions lampooning departmental scandals.

In America, that's no harm, no foul, right? We have a First Amendment. You can make fun of people, even if it hurts their feelings. You can speak, forcefully and satirically, about the conduct of government business. If you make false statements about someone, you might be in for a libel suit, but you're not going to go to jail for cartoons in America, right?

Well, there's America, and there's Shawn Arthur's Renton.

Now, cops will want to do stupid, stupid, lawless things. Prosecutors are supposed to exercise some judgment and haul them back from the precipice of unconstitutional thuggery. But some prosecutors — because they're political hacks who owe their position to the police, because they're strictly fourth-rate lawyers, or because they're thugs themselves — fail to provide that check and balance. Renton Chief Prosecutor Shawn Arthur is such a lawyer. He sought and obtained a a search warrant directed at Google to find the identity of the author of the YouTube videos, using the pretext that the Washington state law against "cyberstalking." That ludicrously overbroad law provides as follows:

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.

Shawn Arthur and his affiant, Renton Police Officer Ryan Rutledge, asserts that the cartoonist, by his cartoons, has violated this section by using lewd and indecent words with intent to embarrass officers of the Renton Police Department:

It is my belief that the targets made in these videos target specific members of the City of Renton and Renton Police Department with the intent to embarrass and emotionally torment the victims by use of electronic communications to such persons or to a third party.

Perhaps the City of Renton and the Renton Police Department is made up of weepy weaklings who are easily hurt and tormented. If so, perhaps they should move to Canada. I understand they're quite solicitous of hurt feelings there.

But wait, you say. Cops will be cops, and hack lawyers will hack lawyers, but what about the judiciary? Surely no judge will sign a search warrant based on a theory that so patently violates the First Amendment?

Isn't it pretty to think so. But meet Kings County Judge James D. Cayce, who rubberstamped a search warrant seeking to unveil a cartoonist on the theory that be committed "cyberstalking" by posting cartoons making fun of police officers and city officials. That, in my experience, is how state judges act. They are no bulwark at all.

I'll watch this case from here. Will Google fight evil and challenge this search warrant? If not, will Shawn Arthur attempt to bring charges against the cartoonist? Does he realize that though he has absolute immunity for lawless prosecutions, he does not have absolute immunity for seeking a search warrant based on protected expression? Time will tell.

For now, thanks to the Streisand Effect, Shawn Arthur and Ryan Rutledge have assured that many thousands more viewers will enjoy the cartoons about their police department than would have without their censorious crusade.

It occurs to me that, in this post, I have, with the intent to embarrass censorious and thuggish public officials, used obscene language to make electronic communications to them or to third parties. Under their ludicrously unconstitutional interpretation of Washington's silly statute, I am guilty of a crime.

Come get me, fuckers.

Hat tip to Balko.

Confidence based on knowledge and skill is effective in an advocate. Confidence premised on ignorance and bluster isn't really confidence at all — it's arrogance, and it's ineffectual and frankly embarrassing.

Just ask Florida attorney Joel Hirschhorn.

Attorney Hirschhorn apparently represents the proprietors of the site www.adamwins.com, some sort of sports betting enterprise. Apparently www.adamwins.com engages in some amount of telemarketing, and drew some highly unflattering comments at 800notes.com, a site that acts as a message board about unsolicited telemarketing, where consumers can browse and post based on company name or telephone number.

If Mr. Hirschhorn were a cautious type, he might have done a bit of due diligence and noted that other lawyers had previously sought to insulate their telemarketing clients from criticism on 800notes.com and got their ass handed to them by Paul Alan Levy at Public Citizen. That might have led Mr. Hirschhorn to educate himself about, for instance, the provisions of Section 230, which (broadly speaking) insulates people who run web sites from liability for the comments written by visitors. Such due diligence might have allowed Mr. Hirschhorn to navigate the treacherous shoals between confidence and arrogance.

Mr. Hirschhorn didn't. He opened right up with a bumptious legal threat to 800notes. When one of the principals of 800notes attempted — with vastly more courtesy than Mr. Hirschhorn had earned — to explain the relevant law to him and why they would prevail under it, he reacted with buffoonish old-man lecturing:

The last time I was told: If you sue us, we will fight back and win, the Florida Supreme Court disagreed with that arrogance and I actually won.
Nonetheless I appreciate your kind and cogent advice. I presume with your confident attitude you must have graduated at the bottom of your class from a third world law school. If I am wrong, I am certain you will correct me.

In the meantime, I will let my client make the decision. No lawyer I know worth his/her weight would ever guarantee a win (you just did) as I have learned in my 43 years of practicing law there are far too many variables.

What transforms this arrogance from run-of-the-mill posturing to transcendent fuckwittery is the fact that Mr. Hirschhorn — who has just delivered a condescending lecture about predicting victory — uses "www.acquitall.com" as a domain for his firm. See, that's arrogance, not confidence.

Paul Adam Levy — again, offering far more courtesy than was warranted — called Mr. Hirschhorn and attempted to educate him about the relevant law. Mr. Hirschhorn hung up on him. Such unprofessional petulance is, once again, the mark of arrogance rather than confidence. It's clear that Mr. Hirschhorn has no basis for confidence:

Hirschhorn bragged that he is not just a member but the founder of the First Amendment Lawyers Association, but acknowledged that he himself did not know anything about the law in this area; instead, he said, he hires others who know the law to help him.

Mr. Hirschhorn ought to talk to the subject-matter experts he hires before he issues legal threats, not afterwards. Otherwise, he will continue to make a fool of himself, as he has here.

It remains to be seen whether Mr. Hirschhorn is so intransigent and unethical that he will go through with a baseless lawsuit against 800notes. If he does, he will get creamed. Merely by threatening to do so, he has guaranteed that — thanks to the Streisand Effect — thousands more people see and hear about the unflattering comments about his client than otherwise would have. Do you suppose he had sufficient competence to know that ahead of time? Do you suppose he advised his client that (1) the entity he proposed to threaten was known for standing up to threats, as a brief Google search would have shown, (2) the threats lacked a good-faith legal basis, as even a minimal amount of diligence in the relevant area of law would have shown, and (3) the almost certain outcome of making the threat would be to more widely publicize (possibly by many orders of magnitude) the allegedly defamatory statements?

Gosh, www.adamwins.com, you tell us. Did Mr. Hirschhorn advise you of those things?

I previously wrote about Joseph Rakofsky, the newbie lawyer who sagely decided that his first trial should be the defense of a guy charged with murder. The court declared a mistrial, which he celebrated, until the Washington Post and dozens of bloggers began to criticize his client-risking hubris. Then, showing the same spectacular judgment, he sued the Post, the American Bar Association, a cheerfully demented message board that communicates chiefly through rude photoshops, and a whole bunch of lawbloggers.

Last I mentioned him, Marc Randazza — possibly bored of kicking the shit out of sleazy copyright-troll enterprise Righthaven — was coming in to represent a posse of the bloggers.

New developments continue to illustrate that (1) Rakofsky really was that bad of a trial lawyer, (2) Rakofsky really doesn't understand the Streisand Effect, and (3) Rakofsky really doesn't know what he's getting into:

1. The Transcript: The heart of Rakofsky's bizarre SLAPP suit is the claim that the trial judge didn't declare a mistrial because he was incompetent — the trial judge only declared a mistrial because Rakofsky's client wanted a new lawyer, possibly because he felt he didn't deserve an advocate who was just this awesome. I argued before that this claim sounded fishy — trial judges don't let you change lawyers mid-trial, requiring mistrials, except in the most extreme circumstances. Sure enough, when the transcript of the judge's comments came to light, it showed that the judge's mistrial ruling was made in the alternative — that it was based both on the breakdown of the attorney-client relationship and on the fact that Rakofsky's inept performance created a "manifest necessity" for a mistrial. That eviscerates Rakofsky's defamation claim — and, in fact, shows that he ought to be subject to sanctions and a bar proceeding.

2. The Borzouye Retreat: Richard Borzouye, the Rakofsky-crony attorney who thought it prudent to file a freakishly frivolous SLAPP suit against a sizable chunk of the legal blogosphere, has asked (with Rakofsky's apparent consent) to withdraw from the case. Better late than never, I suppose, though no competent or ethical attorney should have signed either the original complaint or the amended one to begin with. Will Randazza and his clients let Borzouye go without later pursuing him in some forum or other? Time will tell — but the die was cast, the Rubicon crossed, the ram has touched the wall. Meanwhile Rakofsky claims to be seeking a new lawyer. I suppose it's possible he'll find one with judgment even worse than Borzouye to continue the case. If not, his law firm will be dismissed as a plaintiff, and Rakofsky will be forced to continue pro se, a Latin term meaning, roughly, "mentally unbalanced and currently unmedicated."

3. Rakofsky's First Salvo: Now that the war has started, will Rakofsky show more prudence in picking his battles? Reader, you ignorant slut, how can you even ask that? Rakofsky has picked his first battlefield: squabbling over whether Randazza will be admitted pro hac vice in New York. For you lawyers out there, pro hac vice motion is a routine motion in which a local lawyer supports a request by a lawyer from another state to appear for purposes of a single case. Such requests are granted as a matter of course. Opposing one is the rough equivalent of jumping up and shrieking I OBJECT as soon as the other side says "Good morning, Your Honor." Moreover, Rakofsky's opposing pro se brief is rambling, whiny, and poorly drafted. In it, Rakofsky complains that bloggers continue to make fun of him, effectively admits to eavesdropping on a phone call in arguable violation of law, and gets his briefs in a bunch because Randazza told him to shut the fuck up, which is perhaps the best advice Rakofsky has ever gotten. (Randazza is an unmatched First Amendment pit-fighter, but he's unlikely to be called in to host a ladies' tea party; if Rakofsky doesn't like being told to shut the fuck up, and doesn't like being ridiculed by bloggers, he's in for a bumpy flight.) Nowhere in Rakofsky's mewling rant does he demonstrate any grasp whatsoever of the First Amendment and proof problems facing him. Nor does he demonstrate that he understands that it's foolish to make misleading claims that may quickly be refuted.

4. The First Motions to Dismiss: An attorney representing other bloggers has submitted the first motions to dismiss based on substantive First Amendment arguments. I'm not going to comment on them much because I find New York civil procedure to be an odd duck. Suffice it to say they are but a hint of the type of legal ass-kicking Rakofsky is going to experience.

5. Lawyers Being Lawyers: Meanwhile, lawyers continue to be lawyers. A number of law bloggers, despite being represented by counsel in the case, have continued to blog not only about Rakofsky's conduct (which I might begrudgingly tolerate, were I their attorney) but about the process of being represented in and refuting Rakofsky's lawsuit. That gives you a hint of what it's like to represent lawyers, who are bowel-churningly awful to represent in ways similar to, but distinct from, doctors (with the exception of any doctor or lawyer clients reading this, who are awesomesauce, of course). The phrase that best depicts what it's like to have a lawyer as a client is "Hey, guys, watch THIS!"

Edited to add: I forgot to mention that I introduced Rakofsky to Fark. You kids have fun now!

Edited again: Hello, Bannination folks. That really was intended more as a backhanded compliment than a slight. Please don't hurt me. I am afraid of ponies, for reasons I expressed yesterday.

Nobody listens to me, really. So should it be any surprise that even though I rail against attorney comment spam and try to name and shame the perpetrators, they keep doing it?

We have two entries today (click to view full versions).

First we have Bob Khakshooy. Bob's a rare bird — a lawyer for whom spamming blogs with drivel may represent an improvement in dignity and professionalism. One of Bob's blogs appears to be organized entirely with half-assed SEO as its guiding principle ("Personal injury attorney Los Angeles handle [sic] a broad range of cases in which one party’s negligence results in injury or loss for another individual. Some of the most common cases handled by personal injury attorneys Los Angeles include [sic] auto accidents, burn accidents, truck accidents, spinal injuries, wrongful death incidents, nursing home abuse, slip and fall injuries and dog bite injuries."). Bob's other site appears designed by web experts who are more accustomed to sites describing how FEMA hired the Jews to demolish the World Trade Center. Bob also has a Twitter account, the sole content of which is "George Lopez rocks." My cup runneth over.

This is not, by far, Bob's only effort at comment spamming — Google reveals that he alternates between calling himself a "well liked" attorney and a "greatly loved" attorney, possibly based upon his progress at therapy.

Second, we have comment spam from The Forman Law Offices, a Florida shop that does med-mal work. You can trust them because one of their lawyers wears a medical instrument.

The expression of the guy on the left suggests that he considered contributing to the theme by bringing a speculum, but couldn't think of a dignified way to hold it. Google reveals that the Forman Law Offices has been spamming their sub-literate crap ("Forman Law Offices have provide [sic] good service and they located [sic] in Delray Beach, FL, specializes in [sic] Florida medical malpractice, malpractice law, Florida Medical Malpractice, Florida Medical Malpractice Lawyer.") all over the internet. Though, hey, maybe those Celebrity Kim Kardashian Hairstyles sites were really classed up by references to developments in Florida malpractice law.

Once again, we're left with the core question: did these lawyers (1) direct spam themselves, (2) hire "marketing experts" and then fail to supervise how they were marketing them, or (3) (very highly unlikely) fall victim to some sort of devious plot to discredit them? My money is usually on #2 — that they bought some "marketing expert's" pitch, and the marketing expert hired some twit in Bangladesh to use a spam-comment generator to spray crap all over the internet.

Remember: outsource your marketing, outsource your reputation and your ethics.

Last week I wrote about the awful and patently unconstitutional proposed Tennessee law making it a crime to post mean, feelings-hurting pictures on the internet. I dropped a line to the bill's proponent, Rep. Charles Curtiss (whose name I misspelled throughout; my apologies). Since then, two things have happened:

1. I learned that, contrary to my careless impression, the law has actually passed, and

2. Rep. Curtiss sent me an email responding to my post, as follows:

Ken,
We have heard the concerns. However, the bill was drawn by our attorneys to only apply to very limited circumstances of severe cases of cyberbullying in which the local District Attorney would have to initiatiate, not an individual as some have suggested. The bill was vetted through the committee process and amended before being overwhelmingly passed in a bi-partisan vote. To ensure that it does only apply as intended, we have asked for an attorney general opinion on the matter. We will keep you informed as to the outcome.
Sincerely,
Charles Curtiss

Kudos are due to Rep. Curtiss to responding to a citizen – and not even a citizen in his constituency — who expressed a concern (in rather rude terms) about the constitutionality of a law. Not many would respond at all, let alone response to a snarky asshole blogger taking shots from across the country.

But he's still an oathbreaker. His response (which, to be fair, is probably not intended for attorney consumption) is frankly ridiculous:

1. If their attorneys attempted to draw the bill narrowly to only apply to very limited cases of cyberbullying, then their attorneys suck. Period. Full stop. It doesn't take Eugene Volokh to point out its vagueness and overbreadth problems.

2. It is no comfort at all that the District Attorneys of Tennessee will exercise discretion about which cases to bring. That is, in fact, the opposite of comforting. It means that District Attorneys will be able to pick and choose whom to prosecute for violating a vague law based on their personal agreement or disagreement with the defendant's message. It is precisely the pernicious sort of discretion to censor that First Amendment caselaw prohibits.

3. The fact that the bill was "vetted" through committees and overwhelmingly passed does not magically render it constitutional. Rather, it calls into serious question whether Tennessee lawmakers as a body are faithful to their oaths to uphold the constitution — or capable as a body of grasping that oath.

4. Passing vague censorship laws and then narrowing them by attorney general opinion is no way to run a state.

Rep. Curtiss, and his ilk, are simply relying upon the public's willingness to engage in categorical thinking. He believes — probably correctly — that if he slaps a label like "cyberbullying" onto a law, the public will not inquire further. That's regrettable, and does not fulfill his oath to uphold the United States constitution.

Last year I wrote about the regrettable case of Junius Peake, a former economics professor at the University of Northern Colorado, who reacted to a student's rather silly parody of him by calling the cops.

What was appalling about the story was not just that Petty Professor Peake reacted to satire by involving the cops. What was truly appalling was that the cops bit, and Deputy District Attorney Susan Knox authorized a search warrant for the student author's home, on the theory that the overt satire was criminal libel.

This week FIRE has an update — the District Court has, in an order granting summary judgment against prosecutor Susan Knox, found that she is liable for violating the student satirist Thomas Mink's rights. More specifically, the court found that Knox was not entitled to qualified immunity because, in light of the patently satirical nature of Mink's site, no reasonable prosecutor could have believed that the warrant established probable cause that Mink had committed criminal libel. (Knox is only entitled to qualified immunity because approving search warrants is a discretionary function, not a core prosecutorial function.)

This is an important and admirable victory — all the more so because it is so appallingly rare for prosecutors to be held liable for misconduct. Prosecutors have a legal and ethical obligation to be more than a mere rubber-stamp for law enforcement demands — they have an obligation to see that the execution of justice does not violate the clearly established constitutional rights of suspects and defendants. Here Susan Knox willingly let the criminal justice system be the lawless tool of a censorious, thin-skinned, and ultimately ridiculous thug. This puts a black mark by her name — and should.

You can read the opinion through the FIRE link.

Every litigator has encountered the theatrical, slightly crazy opponent. Their papers are filled with bizarre accusations and wild unsupported legal theories. They dress oddly. Their affect is off. They act out in court.

Some lawyers and pro se litigants act that way because they are genuinely crazy. But some do it because it puts their opponents off their game. If their inexorable oddness makes you lose your cool in writing, or in court, they win, and suddenly the focus of the proceeding becomes not the merits but their oddness and your reaction to it. Suddenly, it's you — rather than the crazy guy — who is the laughingstock, because you've been trolled successfully. If the troll is sufficiently epic, you become infamous. Take Bill Bone, a Florida defense attorney who was so irate at plaintiff attorney Michael Robb's look-at-me-in-my-humble-old-shoes-fighting-for-the-people routine that he filed a motion demanding that the judge order Robb to wear nice shoes in court.

Or, this week, take Illinois attorney Thomas W. Gooch III, who allowed himself to become seriously discomboobulated. Gooch, who was defending his client Exotic Motors from a lemon-law claim, believed that his opponent Dmitry Feofanov had seated his paralegal at counsel table solely to distract the court with her voluptuousness, and saw fit to file a motion in limine demanding that she be exiled:

Defendant's counsel is anecdotally familiar with the tactics and theatrics of Plaintiff's counsel . . . . Such behavior includes having a large breasted woman sit next to him at counsel's table during the course of the trial. There is no evidence whatsoever that this woman has any legal training whatsoever, and the sole purpose of her presence at Plaintiff's Counsel's table is to draw the attention of the jury away from the relevant proceedings before this court, obviously prejudicing the Defendant's in this or any other cause. Until it is shown that this woman has any sort of legal background, she should be required to sit in the gallery with the rest of the spectators and be barred from sitting at counsel's table during the course of this trial.

You know, the judiciary in this country is made up of a Mos Eisley array of misfits, but I can still confidently say that 95% of judges would read that motion and say "wow, what an entitled dick. I'm going to find ways to humiliate him and screw his client." A smarter and more self-possessed lawyer would recognize that. Thomas W. Gooch III may be smart and self-possessed in other circumstances, but in this circumstance, the most charitable interpretation is that he got trolled in epic fashion. Even if he's right in his accusation, he looks like an ass and his Google results are now 75% boob-related. The harm he's caused to his own reputation, and to his client's interests, is worse by several cup sizes than the hypothetical harm they could have faced from Feofanov's alleged stunt. He got rope-a-doped.

And that's the nicest interpretation. Feofanov says his paralegal is qualified and necessary. Gooch may well just be one of those sexist, narcissistic choads who thinks that all the women in the world get dressed every day specifically to allure men like him — like the guy who gets angry because a woman doesn't wear her wedding ring while working out at the gym.

Either way, don't be Thomas W. Gooch III. Protip: if your conduct of your client's affairs requires you to make a statement reassuring the media that you are not per se opposed to large breasts, you're doing it wrong.

I remember my first trial nearly 20 years ago.

I was still in law school, working as a student prosecutor in a failed and dingy industrial town in Suffolk County, trying a misdemeanor marijuana possession bench trial against a 70-year-old-man with no criminal record who had a nine-inch marijuana plant in a ceramic pot in his back yard. Under the ridiculous rules of the People's Republic of Massachusetts at the time, even if I won the bench trial, the defendant was entitled to ask for a second trial, this time in front of a jury. It's hard to imagine how a real-life trial could have gotten more pointless or free of potential consequences to anyone. The whole sad thing took about an hour and a half. The judge listened respectfully to my earnest opening statement while the defense lawyer rolled his eyes. Then the cop got on the stand and talked about finding the marijuana. He had written in his report that when confronted the defendant said "my ex-wife told you it was there; she ratted me out." On the stand, the cop remembered the statement as "my ex-wife put it there; she set me up." The judge found the defendant not guilty. The deputy DAs who were supervising me — barely out of law school themselves — bought me shots of awful tequila at a dive bar and bundled me through the snow onto the T, on which I threw up into a sack several times and missed my change of trains.

A relatively seasoned DA sat with me throughout that trial, because it would be ridiculous to send a baby lawyer alone into his first trial, even one as pathetic as this. Nobody would ever have let me try a serious case as my very first trial. Even later, when I left the government and became a defense lawyer, with a score of much more complex trials under my belt, I sat second chair as a defense lawyer for a while — because trying a case as a defense lawyer is a very different thing than trying one as a prosecutor. Whatever bad things you can say about my judgment — and you can say many awful things, I'm sure — you can't say that rushed to try cases I wasn't prepared to try.

That brings us to the woeful tale of Joseph Rakofsky.

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