The United States Law Week

Attorney Who Sued Usher, Led Zeppelin Can’t Beat Suspension

Dec. 31, 2018, 4:04 PM

A Pennsylvania attorney suspended for misconduct during litigation over an Usher song lost his bid for reinstatement, the U.S. Court of Appeals for the Third Circuit said Dec. 28.

Francis Malofiy remains on the hook in part because of his bad behavior in a separate suit against Led Zeppelin.

Malofiy was suspended for unprofessional contact with an unrepresented defendant. In a copyright infringement lawsuit over the Usher song “Bad Girl,” Malofiy allegedly misled one of the lyricists into thinking he was a witness rather than a defendant who might face financial liability.

Malofiy failed to win reinstatement because he lacked genuine remorse for his misdeeds and continued to act badly even after he was suspended, the reinstatement panel said.

He represented the plaintiff in a lawsuit claiming Led Zeppelin’s famous “Stairway to Heaven” copied part of the song “Taurus” by rock band Spirit. The judge in that case said Malofiy made improper comments to the jury and the media during his suspension.

As one example of what the trial judge called “a litany of tasteless courtroom antics and litigation misconduct,” Malofiy instructed a witness to show his hands to the jury so they could see that they were “clean” in an attempt to rebut the other side’s use of the “unclean hands” defense. This incident illustrated the attorney’s “cavalier attitude,” the judge said.

Malofiy was not being improperly punished just because he exercised his right to appeal his suspension, the appeals court said. The reinstatement panel instead focused on Malofiy’s argument that there hadn’t been enough evidence to find that he violated the rules. This indicated he didn’t genuinely take responsibility for his misconduct, the panel found.

Malofiy also had ample opportunity to defend himself and wasn’t deprived of due process, the appeals court held.

The case is In re Malofiy, 3d Cir., No. 17-3282, 12/28/18.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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