To quote the American Bar Association:

Judges are in an excellent position to observe misconduct by lawyers and to identify it as such.

That’s exactly what federal judge Otis Wright did in his order last week, in which he not only ordered thousands in attorney fees against Prenda Law and its associates, but put everyone from federal law enforcement to state disciplinary authorities on notice. As for Joseph Rakofsky, it was the Internet: 1, Rakofsky: -2, wrote Jordan Rushie, in describing how Rakofsky failed to succeed in his numerous defamation claims.

But why no sanctions against Rakofsky? Judge Shlomo Hagler’s order grants defendants’ motion to dismiss, but goes no further. Why did Rakofsky seem to get away scot free, while Prenda got nailed to the wall?

In Brief: Background on Prenda and Rakofsky

Prenda Law sued ordinary folks for alleged copyright violations when they downloaded porn vids. Prenda wouldn’t ask for too much, just enough in compensation to make the prospect of a trial—with the defendant’s name run through the muck as one who downloads porn—frightening enough. Why not make it all go away and just pay ‘em off. If this sounds like extortion, it’s probably because it is, even if done through “legal” means.

Rakofsky, on the other hand, might not have known what he was doing when he showed up to defend someone on a murder charge, his first trial ever as a young lawyer, and caused a mistrial. But when the Washington Post and scores of law bloggers jumped on the story, he brought a defamation claim against pretty much everyone who wrote about it.

At least one defendant settled and paid Rakofsky the (relatively) lowly $5,000 sum, rather than go through the comparatively large and expensive inconvenience of defending itself at trial. Again, if this sounds like extortion, it’s probably because it is, or comes as close to extortion as you can get with a lawsuit.

Why Is It So Hard For Lawyers to Get Sanctioned?

My hometown paper, the Star Tribune, reported this past weekend about the rising number of Minnesota lawyers punished for misconduct. There’s no shortage of discipline of naughty lawyers right now, at least in my state. But it’s unclear, at least in the Star Tribune’s story, how often judges themselves are taking action or reporting misconduct.

But looking at just the Prenda and Rakofsky cases, one judge did report, the other didn’t, despite the fact that these cases were quite similar in spirit. The First Amendment was central in each, as well as the absence of basic fairness and justice when it comes to lawyers mucking up the legal system and prosecuting lawsuits purely for their own personal gain.

This goes to show how hard it is for lawyers to get sanctioned in the first place. One group of lawyers gets nailed to the wall (Prenda) while another lawyer (Rakofsky) gets a slap on the wrist. Sanctions for lawyer misconduct are hard to come by.

Yes, Prenda and Rakofsky recently lost their cases, and it was a victory for all those lofty things lawyers speak of: the First Amendment, free speech, liberty, the right of people to both conduct themselves as they please and express themselves on the Internet without fear of a frivolous lawsuit.

But Rule 2.15 of the Model Rules of Judicial Conduct requires judges to inform the appropriate authority or take appropriate action when a lawyer commits misconduct.

If Prenda and Rakofsky are two of our most recent examples of infamous lawyer misconduct, of “lawyers behaving badly,” as Popehat writer Ken White puts it, of just plain bad lawyering when it comes to how to use the justice system, then it stands to reason that both Prenda and Rakofsky should face similar punishment. A review of the judges’ orders in these cases shows that didn’t happen.

I guess we must chalk it up to judicial discretion.