Since I spent Sunday with my family and Monday working, I’m late to the Joseph Rakofsky story. The criminal defense blogosphere has all piled on (Jamison Koehler, who as a DC lawyer, has a particular interest, Mark Bennett, Scott Greenfield, Eric Mayer) as did the generalists like Carolyn Elefant and reporters like Elie Mystal and Debra Cassens Weiss.

In short, a judge declared a mistrial in a murder trial because the defendant’s lawyer, who had never tried a case before, didn’t understand the rules of evidence and was caught instructing his private investigator to "trick" one of the government’s witnesses. The lawyer then ended up bragging(!) about it on Facebook while his client sits in jail for an indefinite amount of time awaiting a new trial. The posts linked above collect even more disturbing information about the case, all of which would make a hilarious sitcom but are in fact a sad reality.

There’s obviously not much to be said in Rakofsky’s defense. A lawyer who has never tried a case should not start with an unsupervised felony trial, much less a murder trial. There’s no gray area here; his lack of experience made him plainly unfit for the job, and he should never have accepted it in the first place, not even if he retained local counsel to assist.

But I really wonder if the issue that Bennett, Greenfield, and Elefant et al focus on — the deceptive nature of his internet advertising — was the real problem. I don’t mean to defend his websites or his listings on lawyer directories, both of which imply more experience than he has, but I don’t think his websites really caused the problem here.

He has two websites, one of which opens with a video of him, the other of which has a prominent “About Rakofsky Law Firm” that shows his picture and, beyond the initial puffery, doesn’t identify any particular legal experience beyond a bunch of CLEs he attended. It’s not like anyone thought Clarence Darrow was going to rise from the grave and then was sorely disappointed when a guy who looks fresh out of college showed up. His website unduly expands on his "specialities" (a big no-no ethically), but the gist is clear: he’s young and relatively new, and anyone who read his website would assume as much.

That’s assuming, of course, that his unfortunate client found Rakofsky through his website. I’m not so sure of that; using the “link:” command in Google doesn’t reveal any linking pages at all, which makes me doubt he used any SEO voodoo to promote his rank in the search engines. There’s good odds his pages don’t even show up in the vast ocean of 2,050,000 results in Google for “DC criminal defense lawyer.” We don’t know what his client did to find a lawyer, but I doubt it began with Rakofsky’s website.

Which brings us to the real problems here. Our adversarial system for resolving civil and criminal disputes generally relies, for better or for worse, upon each side to police their own business. That said, there are multiple checks and balances which help prevent incompetent attorneys from walking their clients into trouble, including:

1.      A lawyer’s self-discipline in knowing when they are over their head;

2.      A client’s choice of counsel;

3.      A client’s continuing re-evaluation of their attorney as the matter progresses;

4.      The judge’s general duty to oversee the proceedings.

The first check failed. The fourth check failed until they were mid-trial, but at least it worked then.

But what about the second and third check? What was the client doing?

I haven’t seen it confirmed anywhere, but some of the stories indicate that the client qualified for and was assigned a public defender, but terminated their representation in favor of hiring Rakofsky.

Why? Sure, some public defenders are incompetent (particularly in areas that don’t have full-time public defenders) just as some private lawyers are incompetent, and most public defenders are overworked, but, in many circumstances — particularly in major urban areas with well-established public defender officers — the public defenders will provide more than an adequate defense to the charges. Why did the client turn that down for a lawyer with no trial experience?

Moreover, although clients are not expected to know the details of legal proceedings, and are typically not in a position to analyze the tactical and strategic missteps by their lawyers, most clients can tell when their attorney is an incompetent fool getting steamrolled by the other side and lambasted by the judge. Why didn’t the client think to fire Rakofsky when things start to go wrong?

I don’t blame the client for his misfortune. I doubt he wanted to hire an incompetent lawyer who thankfully only caused a mistrial, rather than a potentially wrongful conviction.

Somewhere along the way, though, we as a society failed to educate that client about his rights. Maybe someone read him his Miranda right to remain silent, but did anyone ever tell him that public defenders are real lawyers — a common problem among legal aid and public interest attorneys, many of whose clients don’t believe they’re “real” lawyers because they’re free — and are often better than private criminal defense attorneys, particularly inexperienced ones? Did anyone tell him that, once he hired an attorney, he still reserved the right to fire them?

Or did he not believe that he deserved better?