Tuesday, May 31, 2011

The Oprah Effect: It Wasn't Joseph Rakofsky's Fault

For those that remember The Oprah Winfrey Show in the beginning, before the book club, and before the giveaways, it's popularity was based on a concept of nothing being your fault. You weren't fat because you ate too much, you were fat because your mother hated you. You didn't have an issue with your kid because of your kid's behavior, it was because of something that happened to you 35 years ago. Nothing in your life that happened was your fault, blame could be squarely be placed on someone or something else, in front of an applauding audience. Oprah made many happy with themselves by the notion that "it's not your fault.

Joseph Rakofsky took on a murder case in the infancy of his legal career, and the results were not good (unless you ask him). A mistrial was granted, and the judge, and a juror had their say.

After many wrote on the issue, it was only a matter of time before someone, J-Dog is his name, presented the Oprah Effect, placing blame on society, law school specifically:

The system is completely broken. It cannot filter out people like Rakofsky; instead it allows them to flow through by the thousands and onto an unsuspecting marketplace. It has no training safeguards to ensure that people handling murder cases can actually handle murder cases. The more hubris-filled unemployed attorneys will do exactly what Rakofsky did; his story made the rounds, others' do not. But he is by no means unique. He is exactly what happens when you license type A personalities to do things before they've actually shown they can do it.

Now to be fair, J-Dog isn't kind to young Rakofsky, but he tempers the criticism with justification:

Is Joseph Rakofsky an idiot? Absolutely. Let us count the ways.

But he's also a symptom of one of the fundamental problems of attorney oversupply. Back in December, I pointed out that having a large mass of desperate unemployed attorneys can put ethical obligations into jeopardy in the context of foreclosure mills. There, attorneys looking for a job - any job - would have an incentive to sacrifice morals to bring in a paycheck.

Blogger and criminal defense lawyer Mark Bennett responded comparing Rakofsky to another writers description of a lawyer "Francis:"

Maybe Rakofsky was doing what he was trained to do, but somehow there are lawyers like “Francis” of Rakofsky’s generation who don’t do what Rakofsky did (by which I mean “marketing himself deceptively, including paying Yodle to do his deceptive advertising for him,” rather than “taking on a case that he was not competent to handle without adult supervision”) and succeed nevertheless. The two ideas are not mutually exclusive.

J-Dog, chimed in,, making sure to clarify he doesn't support Rakofsky's conduct, but can explain:

But morality is only completely black and white to fools. In judging his actions, I think it would be folly to ignore the system that bred him and pin the problem sole on one individual’s failings. To spare you my hour-long lecture, we currently have a legal education system that licenses 12,000 extra attorneys each year than the market demands. These recent graduates are generally devoid of practical legal knowledge, up to their hairline in non-dischargable debt, and carrying a degree that limits their job prospects.

In such situations (and the current one isn’t merely recessionary), the temptation to behave unethically rises dramatically. A starving man is more likely to steal, even if stealing is wrong. Many in the current generation see puffery as the only way to stand out in a very crowded field. They’ve been bred to put everything imaginable on their resume, and judging my some linkedin profiles I’ve seen recently, I have absolutely no doubt it will continue into the future.

The commenter makes some points. Yes, we continue to produce a great number of lawyers, above the demand by the coveted BigLaw, and even government jobs. To those that knee-jerk respond "there's too many lawyers," maybe, but in truth there are too many shitty lawyers, too many that hate the profession, their clients, and never wanted to be lawyers in the first place. Are those that care about their future in the profession (read: future in the profession) so willing to puff (read: lie) and take on matters in which they have no competence just for a little publicity and name recognition?

Joseph Rakofsky got publicity and name recognition.

There is no question that the crowded field of new lawyers has caused some bad behavior, thousands of law grads clamoring for clients, trying it on their own without a stitch of knowledge of how the law or practice works. But let's not make it OK, and let's not ignore the ethical, hard working, young lawyers trying to make it in this economy.

That's really the problem, that we make it OK. While the commenter goes to great lengths to say he doesn't think it's OK, there's plenty reading that comment who want to stand up and applaud.

With Oprah, America was taught not to look in the mirror, and plenty of people are happy to live that way.

Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark


Al Ricketts said...

Right on Brian Who put the OPH in Oprah? remember the mirror doesn't lie It see you backwards, flopped and some times flawed.

Thomas Hutto said...

Rakofsky is to blame for his malpractice.

As a law student I also think that the system is broken, perhaps irretrievably. That does not mean that cheating and lying by attorneys should be condoned or tolerated.

Law school attracts those who are good at law school, not those who will be good lawyers. It does little to prepare students for any type of practice.

Law school also attracts those without plans or a firm commitment to being an attorney. It is usually sold as a good personal investment, or something to do that is lucrative.