CBA Record November 2018

An Egregious Case of Miscommunication with an Unrepresented Party ETHICS EXTRA BY SCOTT M. PRIZ

Accept Client Credit Cards through LawPay Recommended by 46 state and local bar associa- tions, LawPay is proud to be the preferred payment partner of more than 35,000 law firms. LawPay provides attorneys with a simple, secure, and online way to accept credit cards in their practice. LawPay understands the unique compliance and financial requirements placed on attorneys.The LawPay platform was designed specifically to correctly separate earned and unearned pay- ments, giving you peace of mind that your credit card transactions are always handled correctly. CBAmembers who sign up for a LawPay account will get their first 3 months free. To learn more or to get started, visit lawpay.com/cba/ or call 866/376-0950. to respond to the complaint. Guice returned the signed affidavit without consulting an attorney. Malofiy then obtained summary judgment against Guice, and, moreover, had a default judg- ment entered against him. The following spring Malofiy set up a deposition for Guice. Only during the deposition did Guice realize that Malofiy was seeking damages against him. The federal district court in Pennsylva- nia later found Malofiy to have violated all three sections of Rule 4.3 of the Penn- sylvania Rules of Professional Conduct as well as Rule 3.4 of the ABA Model Rules, all of which are essentially identical to the Illinois rules. After the deposition, a group of defen- dants filed a motion for sanctions against Malofiy. The default judgment against Guice was reversed, and Malofiy was ordered to pay $28,000 in fees and costs. A three-judge panel suspended his license for three months and a day, which was upheld by the Third Circuit. Malofiy’s extreme and outrageous con- duct serves as a cogent reminder to Illinois attorneys that the need to inform unrepre- sented opponents to engage counsel and to memorialize that fact is of utmost impor- tance and requires forthright language

W hen attorneys are contacted by an unrepresented party oppo- nent, they must tell the party opponent to get an attorney of their own. A Pennsylvania case shows the mischief an attorney can cause for an unrepresented opponent for failing to adhere to that age-old rule. The case also shows how that type of abuse of attorney obligations can boomerang when an attorney acts in an especially egregious way. Francis Malofiy, a Pennsylvania attorney, gained notoriety in 2016 for his court- room demeanor in a lawsuit for copyright infringement against Led Zeppelin for the song “Stairway to Heaven.” Rolling Stone magazine described his antics in that case, which he lost but could not appeal: his appeal could not be processed because earlier in 2016 the Third Circuit Court of Appeals had suspended Malofiy’s license for his conduct in an earlier unrelated matter. In that earlier lawsuit, Malofiy had engaged in improper communications with an unrepresented party opponent and thus had violated Rule 4.1 of the Penn- sylvania Rules of Professional Conduct. Malofiy took advantage of a non-attorney’s naïveté about the law and preyed upon his opponent’s trust in him. Scott M. Priz, a Morrissey Scholar, received his JD Summa Cum Laude from The John Marshall Law School in 2018

The facts are laid out in the Third Cir- cuit’s opinion dismissing Malofiy’s appeal in the earlier matter. (In re Malofiy, 653 F. 148 [3rd Cir. 2016]). Malofiy had been hired some years before to pursue a copy- right infringement case against recording artist Usher and the co-writers of the song “Bad Girl.” One of the defendants, the lyricist William Guice, was unrepresented and had never been involved a lawsuit. After the complaint was filed, Guice called Malofiy about the nature of the lawsuit. In the initial phone call with Guice, Malofiy did not explain to Guice that they had an adversarial relationship, although he did tell Guice that Guice need not talk to him. During that initial conversation, Malofiy interrupted the call to seek the advice of a more experienced attorney there in the room. That attorney advised Malofiy to tell Guice to get an attorney of his own and to make sure that Guice knew that Malofiy’s interests were adverse to Guice’s interests. However, Malofiy never memorialized the gist of his conversations with Guice. The district court later credited Guice’s testimony that Malofiy had never advised him to seek counsel. Malofiy then proceeded to make things worse. He prepared an affidavit and called Guice again. He explained to Guice that he was going to “hold tight” or “sit tight” in the case against Guice. After he sent the affidavit to Guice, his more experi- enced attorney advisor told Malofiy to put in writing that he had advised Guice to engage a lawyer, but that Guice had chosen not to engage a lawyer. Malofiy compounded his error by telling Guice that he could “review the affidavit with a lawyer, that’s fine too.” Malofiy thus manipulated Guice into thinking that he did not need

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