Rakofsky or Roberts? Help Me Decide

In the voting on Popehat for Censorious Asshat Of The Year, I am torn between Thedala Magee and her lawyer Vicki Roberts, and Joseph Rakofsky.

In any other year, Marc Stephens would be a contender, but what he did was, basically, pretend to be a lawyer like Vicki Roberts or Joseph Rakofsky. It wouldn’t be fair to Roberts or Rakofsky to give the award to wannabe Stephens when they, Stephens’s models (not to mention lawyers Joel Hirschhorn, Maeghan Maloney, Martin Leaf, and Albin H. Gess) are nominees. Call me an exceptionalist, but I think this award should go to someone who, having graduated law school and passed a bar exam, ought to know better.

Vicki Roberts and Joseph Rakofsky both ought to know better. (Both were, at some point, licensed in New Jersey, as is Rachel Kugel; what is it about New Jersey?)

All Roberts did was send a demand letter—something some lawyers do, with no intention of following up, in hopes of shaking a few dollars loose. (This is a blog post for another day, but in the days before the Internet lawyers could send demand letters to nonlawyers and assume that they wouldn’t be called out, much less punched in the virtual throat by Marc Randazza. Roberts, a woman of a certain age, is still living in those days—or was: Randazza’s pro bono response on behalf of blogger Amy Alkon may have educated her.)

Rakofsky—of a generation that should be familiar with the Streisand Effect, went beyond sending a demand letter; he filed a frivolous lawsuit and then, when the frivolous lawsuit wasn’t widely lauded, tried to sue critics of the lawsuit as well, and tried to add the cockamamie theory of “internet mobbing” to his complaint.

I see Roberts’s age as a mitigating factor, and Rakofsky’s conduct—he actually filed suit; not only that, but he actually filed suit against me—as highly aggravating. Asshat advantage: Rakofsky.

Rakofsky’s court documents read like the pro se pleadings of crazy people and, indeed, Rakofsky claims publicly that he will need psychological treatment for the rest of his life. If Rakofsky is not malingering, his mental illness is a mitigating factor. I don’t think the possibility of mental disease or defect can be entirely ruled out in Roberts’s case, but the asshat advantage in this category is hers.

Roberts picked on a nonlawyer. Rakofsky filed suit against lots of lawyers: lawyers who could reasonably be expected to know the law and to fight back. Again, asshat advantage: Roberts.

Roberts sent her demand letter to try to shut down criticism of the government. Rakofsky filed suit to try to cover up his violation of his Sixth-Amendment duty to  a client who had put his life in Rakofsky’s hands. I call that a draw.

Roberts (presumably) got paid to be an asshat; Rakofsky did it all by himself; mitigation or aggravation? Make of it what you will.

So far, it’s a close call. What am I missing?

33 responses to “Rakofsky or Roberts? Help Me Decide”

  1. And in the event of a tie? Old school – Ladies’ Advantage? New School – Most Cojones? Still a tie. How about – most trees killed or most bandwidth wasted? Crap. This is more difficult than I anticipated.

  2. I thought an unsuspecting murder defendant’s family paid Rakofsky $10,000. That was part of his asshattery, wasn’t it?

  3. Roberts is on there with Magee, so you’re getting a 2-for-1 with them. You discussed Roberts so I’ll address Magee. Magee is not a lawyer, but she’s an egregious asshat anyway. She does a despicable job harassing innocent Americans and sexually assaulting air travelers. When called out, she tried to intimidate Alkon. Let’s see, she’s trampled on the 4th Amendment and tried like hell to trample on the 1st. Sexual assault, search without p.c., being a government lackey, being a litigious pissant, threatening suit if others don’t kowtow to TSA. Plus, she’s got a major government bureaucracy backing her up. That does it for me.

    • Thedala Magee unquestionably deserves all of the censure she’s received and more. But the competition is not simply for asshat of the year, but censorious asshat of the year. She had no reason to know that Alkon’s post was not actionable; Roberts did.

      • Then I think we should consider Magee’s censorious conduct which started the whole mess. The TSA procedure of groping and fondling is censorious itself because it’s used on people who refused to be scanned. It’s used to punish people for not complying and the degree of assault gets worse the more you protest. Mention the 4th Amendment or tell them to not get so handsy – or in this case sob as loudly as possible – and up the labia the hands go. It’s government-sanctioned sexual assault used as a weapon to tamp down protest.

  4. Maybe I’m missing something, but isn’t Magee, as despicable as she may be, still entitled to legal representation? These criticisms of Vicki Roberts for representing her sound very similar to the puritanical recriminations that are directed towards me when I tell people I practice criminal law. “You represent THOSE people?”
    I don’t think it matters that one scenario is criminal and the other is civil: access to the courts is necessary in a democracy, and most people need the assistance of lawyers to do that.

    • If I decide to sue you because this comment hurt my feelings, and find a lawyer to do it, should that lawyer’s choice to pursue the case be spared criticism on the grounds that everyone is entitled to representation?

      We criminal lawyers are not required to make any evaluation of whether a client “deserves” to be defended. We have an obligation not to suborn perjury or make patently frivolous arguments (except the ultimate argument to the jury that the evidence is insufficient, which is never frivolous), but that’s it.

      By contrast, civil attorneys have an obligation not to pursue transparently bogus or unlawful claims.

      • Yes, and there is an effective remedy for when civil lawyers violate that obligation: attorney’s fees and costs.

        I am familiar with Ms. Roberts by reputation and have seen some of her work. For what my opinon is worth and knowing as little as I do about the underlying facts here, Ms. Roberts gets the benefit of the doubt in my eyes.

        • How many cases have you seen where frivolous suits actually led to the award of fees and costs?

          The fact that there is a theoretical mechanism for addressing frivolous suits does not mean that lawyers who threaten them should be spared criticism.

          Again: if I decide to sue you for disagreeing with me here and hurting my feelings, should my lawyer be spared from criticism because everyone gets a lawyer under our system?

          • You are right, awards of fees and costs are rare, but I think that reflects the fact that judges recognize the reality of how hard it is determine what a lawyer knew or did not know before commencing ltigation.

            Yes, you and I are free to criticize Ms. Roberts for her representation of Magee. However, I choose not to do so, because I realize how little I know of this matter.

            If you were to sue me for my comments above, I think I would get a pretty quick judgment on the pleadings. If I got some fees and expenses out of you, I would use it to take a nice vacation to Hawaii!

          • Yes. It’s perfectly rational to refrain from criticism when you haven’t read up on the matter.

            Perhaps it is slightly less rational, when you have deliberately refrained from reading up on the matter, to say that critics are like people who attack criminal defense lawyers.

          • Ken, we were having such a nice scholarly debate, I hate to see it has veered into the ad hominem.

            You are right, I have not read everything this to read on this matter. I frankly don’t have the time or the interest to do so. At any rate, nothing that has been said about it is under oath, so I don’t think any of it deserves all that much weight anyway.

            I think the truly wise man is the one who realizes just how little he knows, that’s all.

          • See, I thought it veered with “these criticisms of Vicki Roberts for representing her sound very similar to the puritanical recriminations,” etc.

            But that’s just me. No doubt each reader can decide.

        • We’ve hashed this out here before. The sanctions provided by the system are not effective. Roberts’s extortion attempt, for example, is neither sanctionable or grievable. The best weapon against lawyer misconduct is the spotlight.

          • And by “spotlight” do you mean “witch trial”? Because that is sure what it sounds like to me.

            As the self-respecting post-modernist that I am, I absolutely reject your attempt to control the terms of discourse by defining “ad hominem”. The english language exists independently of you.

            As the self-respecting Freudian that I am, I think…well, I better not go there.

          • Yes. Yes, exactly. Because that’s what they did at the witch trials. They criticized them. “I criticize Goody Flanders!” Like that. It was brutal. That’s part of the cultural heritage that led to the Constitution, the Bill of Rights, and the core concept of our polity that nobody can be criticized without due process of law.

          • If words mean whatever you say they mean, untethered from grammar, logic, and history, then you get to pretend to always be right.

            How self-affirming for you!

            But I do, in fact, control the terms of discourse here, and these comment pages don’t exist for your self-affirmation. So please try to restrain your postmodernism and behave like the communicator that a lawyer is supposed to be.

            Because there’s no point arguing with Humpty Dumpty.

            (Orthogonally: You know who else thinks he gets to decide what words mean what he says they mean? Joseph Rakofsky, that’s who.)

          • mb-) Roberts’s extortion attempt, for example, is neither
            mb-) sanctionable [nor] grievable

            You are correct. But it is, to a small and expensive extent punishable: the threatened person may elect to bring a dec action, in their own state; I think the elements are met with Roberts’ threatening letter.

            I don’t know of any clear way, in Florida, that you’d get fees, but you would at least have vindication and they’d have to come to your county instead of you having to go to theirs.

  5. Magee/Roberts got my vote. While this may be the arrogance of ignorance, I’ve always had the impression that I could defend myself pro se against Rakofsky for “internet mobbing” armed with little more than a few hours at a public library and some advice from my (career paralegal) mom. In gaming parlance, he’s a ‘squeaker’: an immature player who makes loads of profane noise to cover up his/her incompetence.

    • Dean, in order to defend yourself pro se against Rakofsky, you’d have to file an answer in New York, then file a motion to dismiss in New York, then appear to argue the motion to dismiss in New York, all the while dealing with a pro se litigant on the other side.

      To defend yourself against Roberts, you’d only have to discard her demand letter.

  6. Don’t these “rules” you seek to impose upon me at least require your recusal on voting upon the Rafosky litigation.

  7. Roberts due to greater degree of mens rea 🙂 .

    Rakofsky may have been a censorious twat but he was pretty fresh out of law school and he genuinely seems deluded that he might get somewhere with his action.

    Roberts knew fine well that she was on a road to nowhere unless her victim was legally clueless and did not consult an attorney who had at least read a First Amendment case (which is probably what Roberts was hoping).

  8. I saw no point in wading into this morass as the outcome of the vote was a foregoine conclusion. It had little to do with who was more censorious, as all the nominees were sufficiently censorious in their own right to deserve recognition.

    Rather, it’s about the future. Which of these nominees five years from now, ten, even twenty, will stand as a beacon of censorious asshattery? Who’s name will immediately evoke lulz from people not yet born? Who will emerge as the lawyerly equivalent of Streisand?

    There could only be one among the many, who will forever remain in our hearts and minds as the young lawyer who sued the internet. He was destined to win, and so he


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