Attorney Misconduct, Benchslaps, Celebrities, Copyright, Depositions, Legal Ethics, Music

Lawyer Suing Usher Gets Benchslapped Into The Stone Age

There is conduct that receives warrantless benchslaps from cranky judges. This is not that conduct.

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Usher wrote this song called Bad Girl. It’s got a good beat and you can dance to it. Anyway, this guy named — I s**t you not — Dan Marino claims he wrote the song and Usher and his cronies stole it from him. He wants millions and millions of dollars. But rather than trigger the fall of the House of Usher, his lawyer got handed his hat.

He hired a lawyer named Francis Malofiy to zealously represent his interests. To his credit, “zeal” is not a failing of Mr. Malofiy. Courtesy, respect, professional responsibility — these things might be lacking, but he’s got zeal covered.

And, as it so often does, the latter failings (coupled with the former strength) gave rise to an epic benchslap….

Judge Paul S. Diamond granted summary judgment in favor of Usher and the other defendants yesterday, but on his way out the door, Judge Diamond penned a 22-page opinion ripping Malofiy for his conduct and sanctioning him for a particularly egregious move. When a federal judge kicks off the opinion with:

Throughout this copyright litigation, Plaintiff’s Counsel, Francis Malofiy, has behaved in a flagrantly unprofessional and offensive manner. Seventeen of the twenty Defendants in this action have moved for the imposition of sanctions against Mr. Malofiy.

You know you’re staring down the barrel of a benchslappin’. Just a very few examples highlighted by Judge Diamond are Malofiy’s deposition statements: “You’re like a little kid with your little mouth,” “This is bulls**t,” “I’ve never seen any lawyer do this so bad ever,” and “[Counsel], you are defending thieves and you are acting like somebody who should be hanging out with them at this point.” If run-of-the-mill abuse isn’t enough for you, he can be sexist too:

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More disturbing are Malofiy’s sexist, abusive remarks. For instance, during one deposition, Malofiy stated the following to Defense Counsel:

MALOFIY: Don’t be a girl about this . . .

DEFENSE COUNSEL: Mr. Malofiy, I would appreciate you not referring me to as a girl, which you have done repeatedly off the record and on the record.

He’s a delight. Apparently the spelling of his name was changed at Ellis Island when his family came over from Hogwarts.[1]

And he doesn’t limit his behavior to depositions outside the keen eye of the judge. He wrote a sur-reply that opened with “Defendants’ behavior is getting to be absolutely ridiculous. On November 5, 2013, [Defense Counsel] wrote the Court one of the most sophomoric letters I have seen….” Then there’s my personal favorite:

Malofiy’s written submissions to the Court are as bad. He captioned one of his filings: “Response in Opposition Re Joint Motion for Sanctions by Moving Defendants Who are Cry Babies.”

Emphasis in original FTW.

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If Malofiy’s name sounds familiar, it’s because he was in the news just a couple of days ago for alleging that Led Zeppelin stole the opening of Stairway to Heaven because aggrieved music industry types trust this guy for some reason. Ooh, it makes me wonder.

Malofiy argued that the judge should excuse his behavior “as a function of his inexperience and his need of a “mentor.'” How could he be inexperienced? He’s a Superlawyer! Isn’t Superlawyers the most reliable affirmation of lawyer competence out there?

Just check out his firm advertising:

“There Is Power In Numbers — There Is Courage In One”? Is he a lawyer or an Army recruiter? Far from inspiring confidence, it kind of looks like a demon dealing with constipation. Oh, and he may want to remove that last representative litigation from his ad.

Despite Judge Diamond’s clear disdain for Malofiy’s behavior, the judge opted to spare Malofiy sanctions for acting like a jerk. However, Judge Diamond found a much, much bigger problem with Malofiy’s conduct. Specifically, Malofiy told one of the less-than-litigation-savvy defendants that he was “just a witness,” coaxed a bunch of intel out of him, and then entered a default judgment against him when the defendant — operating on Malofiy’s assurances — ignored the suit because he didn’t know he was a defendant. Something he didn’t learn until his deposition, when defense counsel clued him in:

DEFENSE COUNSEL: Do you understand that Mr. Marino who’s sitting across the table from me is seeking money from you?

GUICE: Well — well, that part — I didn’t know he was seeking it from me personally.

DEFENSE COUNSEL: Yeah. He is seeking money from you and he’s asking you to pay him monies that you received from the exploitation of Bad Girl. Did you understand that?

GUICE: No, I did not.

* * * *

DEFENSE COUNSEL: So all the time you were talking with Mr. Malofiy you didn’t understand that Mr. Marino was suing you for money damages and for relief with respect to Club Girl and Bad Girl?

MALOFIY: Objection.

GUICE: No, I didn’t. And that’s… the level of my ignorance….

Judge Diamond closed his opinion by characterizing Malofiy’s conduct as “disgraceful” and suggesting that another forum may consider removing him from practice. Based on the content of the opinion, that might be a good idea.

But seriously Judge Diamond, while you were at it, couldn’t you levy some sanctions against Usher for unleashing Justin Bieber[2] on the world?

(Flip to the next page to read the full sanctions order.)


[1] Yes, I get that Hogwarts isn’t a nation of origin. What was I going to say — “England”? — and deal with people scratching their heads and not getting it. If you’re a person who really cares about this I’d advise you to calm down and go back to writing your Ron and Harry slash fic.
[2] Did you not realize Usher is the guy who turned the Canadian terror loose on America? Then you must never have watched The Voice because Usher mentions it ALL THE F**KING TIME.
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