¡Que Pendejosidad!

 Posted on October 26, 2011 in Uncategorized

From page 26 of Joseph Rakofsky's sworn Affidavit in Support, between his Notice of Motion and his Amended Complaint (OCRed copy of all 347 pages here, 55.4MB):

MOTION FOR SANCTIONS131. On or about May 9, 2011, plaintiffs retained Richard Borzouye, Esq. to represent them in this matter.132. Richard Borzouye has breached various rules of professional conduct, deviated from standards of care, and otherwise acted wrongfully, causing damages and prejudice to plaintiff.133. First of all, after noticing his appearance for plaintiffs, Borzouye abruptly sought to withdraw his appearance only a couple of weeks into his representation of plaintiffs.134. Plaintiffs relied to their detriment on Borzouye's representation and now have been required to spend time and money to retain replacement counsel.135. Furthermore, Borzouye undertook to make secret communications to an individual with whom he was specifically admonished and specifically instructed by Plaintiff Rakofsky to refrain from communicating, who sought to represent certain defendants, but was not admitted to practice law in New York, and therefore, was not yet admitted to practice in the case at Bar, which were damaging to plaintiffs' case and clearly should not have been made.136. The result of the communications was that defendants and/or their attorneys posted various comments on the internet that were damaging to plaintiffs and that certain defendants were exposed to various aspects of Plaintiffs' strategy.137. Rule 1.1 of the Rules of Professional Conduct provides that a lawyer shall not intentionally prejudice or damage the client during the course of his representation.138. Rule 1.6 of the Rules of Professional Conduct provides that a lawyer shall not knowingly reveal confidential information.139. Borzouye's secret and extremely improper communications with the aforementioned individual were unnecessary and contained confidential information.140. Furthermore, Mr. Borzouye failed to disclose material information to plaintiffs before they retained him. Had the material information been revealed to plaintiffs, they would not have retained him, as Mr. Borzouye has demonstrated a long history of abandoning clients in the middle of litigation. In fact, at the hearing on September 15, 2011, even Judge Goodman acknowledged that Mr. Borzouye's refusal to attend the hearing evidenced his contempt for the rules of this Court and his patent pattern of completely neglecting his clients, who duly retained and compensated him for such representation and to protect their respective interests.141. Further, Mr. Borzouye failed to serve this Court's Order dated July 22, 2011 upon Plaintiffs in the manner and/or within the time limits directed by this Court in such Order.142. In addition, Mr. Borzouye failed to file the Retainer Statement for his representation of plaintiffs in this case.143. Mr. Borzouye failed both to provide to clients and to file any Letter of Engagement.144. Simply, Mr. Borzouye engaged in conduct in violation of the Rules of Professional Conduct.145. The above actions of Richard Borzouye, Esq. are wrongful and/or violations of professional rules, standards and duties, and have damaged plaintiffs.146. For these reasons, plaintiff respectfully requests that sanctions be imposed upon Borzouye, attorneys fees be awarded to plaintiffs in the amount of $10,000.00, and that this matter continue to be stayed until the stay is dissolved by this Court, as was decided at the hearing before Judge Goodman on September 5, 2011.

First, Rakofsky just waived the lawyer-client privilege to large extent (a layer may reveal confidential information "to defend the lawyer... against an accusation of wrongful conduct"), which may prove interesting.

Second, Rakofsky had, in online marketing, claimed Borzouye as a member of his firm. He knew exactly what he was getting with Borzouye as his lawyer.

Third, this little tantrum is probably not going to help Rakofsky find another lawyer to take his case. "You asked the judge to sanction your previous lawyer, and now you want me to take the case? I'll pass, thanks."

Fourth, "an individual with whom he was specifically admonished and specifically instructed by Plaintiff Rakofsky to refrain from communicating"? Since when can a client instruct a lawyer not to communicate with anyone?

The rules in New York allow disclosure that "is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community"; if your lawyer has improperly revealed confidential information you don't complain about the lawyer communicating with someone against your instructions. You complain about your lawyer improperly revealing confidential information. (You also file a bar grievance.)

Fifth, I doubt that anyone believes that Borzouye filed suit on behalf of Rakofsky as anything other than a favor to a friend (with hopes of a publicity bonus).

By filing suit for his pal Rakofsky, Borzouye-whether he knew it or not-put his professional reputation and his bank account on the line along with his precious time. It wasn't much of a favor to Rakofsky-a greater mitzvah would have been to dissuade Rakofsky from filing suit at all (I don't know if he tried, but see "First," above)-but it is not entirely out-of-line for a lawyer, when a friend is intent on destroying himself in court, to come along for the ride to try to minimize the damage.

I admit: I have been known to do this. I'll do my best to stop a friend from picking a bad fight, but if I can't stop him I'm on his side. For me, "loyalty" is an important moral foundation-there are few sins greater than betrayal. I suspect that most criminal-defense lawyers feel the same way: better to be on the losing side in the company of friends than to be on the winning side and friendless. Which brings us back to Joseph Rakofsky's request (can you request something in an affidavit in New York?) for sanctions against Richard Borzouye.

Borzouye and Rakofsky had a relationship before Borzouye filed suit. Borzouye tried to help Rakofsky file suit against a bunch of bloggers-bloggers who are not known for their kindness to arrogant fools. The Internet was not kind to Richard Borzouye. Maybe he realized he'd gotten in too deep; maybe he decided that he was ethically obligated not to prosecute a frivolous lawsuit: Richard Borzouye withdrew from the field of battle. When we know more (see "First," above), we could discuss whether Borzouye should have been more loyal to Rakofsky, or whether Borzouye had an obligation under the rules not to file the suit for Rakofsky in the first place.

Even if Borzouye was wrong in ditching his client, Rakofsky's request for sanctions against him is beyond the pale. Borzouye tried to help him. None of the conduct Rakofsky complains of seems to have caused him any real harm. (Does anyone know what "certain defendants were exposed to various aspects of Plaintiffs' strategy" means? Is seeking sanctions against his former lawyer part of that strategy?) Aside from the fact that no judge who is not related to Rakofsky would order sanctions against Borzouye on the grounds Rakofsky has alleged, Rakofsky makes himself look like even more of an incompetent asshat by complaining publicly, while litigation is pending, about the guy who helped him get into that litigation.

Every time Rakofsky sets toner to paper, it becomes more clear that he's not playing by the rules that govern the rest of us. His written denunciation of Borzouye is nutty enough that I suspect that I'm violating Rule 1 just by writing about it.