Legal Ethics

Federal court suspension upheld for lawyer who sued Led Zeppelin; sanction stems from Usher case

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The lawyer who lost a lawsuit against Led Zeppelin for copyright infringement won’t be able to practice in Philadelphia federal court temporarily as a result of a federal appeals court decision last Thursday.

The Philadelphia-based 3rd U.S. Circuit Court upheld a suspension of three months and a day from practice in the federal court for lawyer Francis Malofiy.

The suspension stems from Malofiy’s actions in a copyright infringement suit against Usher over the song “Bad Girl.” Malofiy represented the plaintiff who claimed he was one of the writers but received no credit or proceeds.

Malofiy was accused of misleading an unrepresented defendant who called Malofiy after receiving the complaint. The defendant, lyricist William Guice, had claimed he was misled into believing he was a witness rather than a defendant who faced potential financial liability.

Malofiy obtained a default judgment against Guice, despite promising that he was “not going to do anything” with him, the appeals court said, citing district court findings.

During Guice’s initial call to Malofiy, the lawyer explained that he represented the plaintiff, Guice didn’t need to talk to him, and Guice was the defendant, according to the factual findings. Malofiy didn’t explain that Guice’s status as a defendant meant they were in an adversarial relationship, according to the appeals court opinion. Malofiy maintained he advised Guice during the initial call to get a lawyer; Guice claims he wasn’t told.

During that phone call, Guice said Malofiy’s client was involved in writing the song and he was unaware Malofiy’s client did not receive credit or proceeds. Malofiy said he would prepare an affidavit for Guice to review.

In a second, recorded phone call, Malofiy said he was “not going to do anything” with Guice in the case and secured Guice’s agreement to sign the affidavit. Malofiy sent the affidavit by email, and in a follow-up email advised Guice that if he wanted to review the affidavit with a lawyer, “that’s fine too.” Guice signed and returned the affidavit without consulting a lawyer.

Thinking that his affidavit was the only response needed to the lawsuit, Guice did not file an answer. Malofiy sought and obtained a default judgment against Guice. In a later deposition, Guice finally realized Malofiy was seeking damages from him.

The federal judge in the suit found that Malofiy had violated a Pennsylvania ethics rule governing contacts with unrepresented persons. He vacated the default judgment, tossed Guice’s affidavit and deposition testimony, and ordered Malofiy to pay about $28,000 in fees and costs.

A three-judge panel of the district court agreed that Malofiy had violated the ethics rules involving unrepresented persons and as well as an ethics rule barring false statements, and imposed the suspension. The 3rd Circuit affirmed.

As mitigating factors, the 3rd Circuit noted that Malofiy was relatively young, he sought advice from a more experienced lawyer, he had no prior disciplinary record, and he had several character witnesses.

An aggravating factor was Malofiy’s refusal to acknowledge his interactions with Guice were inappropriate. The 3rd Circuit also commented on other conduct in the case. During depositions, Malofiy made these comments: “I’m tired of your clap trap and hogwash;” “You’re like a little kid with your little mouth;” “This is bullshit;” “This is nauseating;” and “I never seen any lawyer do this so bad ever.”

Hat tip to the Hollywood Reporter’s THR, Esq. blog.

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