On May 11, 2011, Joseph Rakofsky and his New Jersey Law Firm filed suit in New York state court alleging defamation and violation of their civil rights under New York law against 74 defendants including the Washington Post, the American Bar Association and several bloggers. [Complaint]
The 71 page Complaint alleges in large part that a Washington Post reporter and subsequent bloggers got it all wrong by stating that Rakofsky’s inexperience and performance played a role in the trial judge’s grant of his motion, mid-trial, to withdraw from representing, as lead counsel, a defendant on trial for murder in Washington D.C.. Rakofsky, a 2009 law school graduate who was admitted to practice law in New Jersey in April 2010, had never tried a case, let alone a murder case.
Rakofsky alleged that he was defamed in a pair of Washington Post articles, one that appeared on April 1, 2011, entitled: “D.C. Superior Court judge declares mistrial over attorney’s competence in murder case” and another that appeared on April 9, 2011, entitled: “Woman pays $7,700 to grandson’s attorney who was later removed for inexperience.” Bloggers and others picked up the story and commented, some including mention of Mr. Rakofsky’s advertisements of himself on his website as a specialist in criminal law.
In several places in the Complaint, Rakofsky alleged that: “the record is clear that RAKOFSKY moved to withdraw as lead counsel and was so permitted and that Judge Jackson granted RAKOFSKY’s motion solely because a conflict existed between him and his client.”
According to his own pleading, however, Rakofsky conceded that Judge Jackson expressed his outright displeasure directly to Rakofsky about his performance on the record. Unbowed, Rakofsky accused Judge Jackson of slander.
“Notwithstanding the foregoing facts, Judge Jackson, likely being aware of the possible presence in the courtroom of a newspaper reporter, ALEXANDER, a so-called newspaper ‘reporter’ from the Washington Post, and knowing full well that both news reporters and others would publish his slanderous and defamatory words, Judge Jackson, for reasons that can only be speculated, gratuitously published on the record the slanderous, defamatory statement that, having acknowledged that RAKOFSKY’s motion for withdrawal as lead counsel for the defendant was caused by a conflict with the defendant which the defendant confirmed, that he was ‘astonished’ at RAKOFSKY’s willingness to represent a person charged with murder and at his (RAKOFSKY’s) ‘not having a good grasp of legal procedures.’” (See Para. 118 of Amended Complaint filed on May 18, 2011, naming yet more defendants.)
It is not apparent whether Judge Jackson actually granted Rakofsky’s motion to withdraw prior to his statements about Rakofsky’s experience and performance. Also unclear is whether Judge Jackson’s thoughts about Rakofsky’s performance or experience entered into his decision. Rakofsky does not indicate when Judge Jackson’s written order granting the motion was entered.
By his own pleading, however, Rakofsky admits that Judge Jackson made those unflattering statements about him in court. Accordingly, it may well be argued that reporting the statements made by the judge was subject to the fair reporting privilege. It may also be argued that others’ comments tethering Judge Jackson’s criticism to his decision on the motion, even if such tethering turns out to be not entirely accurate, may nonetheless be subject to the defense of substantial truth. Information about fair reporting privilege and substantial truth defense can be found at the Citizen Media Law Project here.
This case will be interesting to follow.