653 F. App'x 148
3rd Cir.2016Background
- Attorney Francis Malofiy filed a 2011 copyright suit on behalf of Marino against Usher and others; lyricist William Guice was an unrepresented defendant.
- Guice, inexperienced with litigation, called Malofiy after receiving the complaint; Malofiy learned Guice lacked counsel and then questioned him and sought an affidavit.
- A recorded follow-up call and emails show Malofiy repeatedly told Guice he would “sit tight” and would not pursue claims against him; Guice perceived himself as a witness and signed an affidavit without counsel.
- Malofiy later sought and obtained a default judgment against Guice without informing him; Judge Diamond vacated the default, struck Guice’s affidavit and testimony, and ordered Malofiy to pay fees.
- A three-judge District Court panel found Malofiy violated Pennsylvania Rules of Professional Conduct 4.3, 4.1(a), 8.4(c), and 8.4(d), and imposed a suspension of three months and one day.
- On appeal, the Third Circuit reviewed the factual findings for clear error and affirmed both the rule violations and the suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Malofiy violated Pa. RPC 4.3 (dealing with unrepresented persons) | Malofiy says he warned Guice to get counsel on the first call and identified Guice as a defendant, so he satisfied Rule 4.3 | Malofiy misled Guice, failed to correct Guice’s misunderstanding, and fostered belief Guice was merely a witness | Court: Malofiy violated Rule 4.3; his statements and omissions did not adequately convey adverse interests |
| Whether Malofiy violated Pa. RPC 4.1(a) (false statements of material fact) | Malofiy contends he did not knowingly make false material statements | Malofiy told Guice he would “sit tight” and not pursue claims, but then sought default judgment | Court: Malofiy knowingly made material false statements in violation of Rule 4.1(a) |
| Whether Malofiy’s conduct violated Pa. RPC 8.4(c) and 8.4(d) (dishonesty; prejudicial conduct) | Malofiy argues conduct did not amount to dishonesty or prejudice to administration of justice | The false assurances and resultant procedural harm show deceit and prejudice | Court: Violations of 8.4(c) and 8.4(d) affirmed as consequence of Rule 4.1(a) violation |
| Appropriateness of sanction (suspension of 3 months + 1 day) | Malofiy claims youth, inexperience, good character, and that suspension is excessive | Court cites knowing misconduct, risk of default judgment, aggravating factors (refusal to accept wrongdoing, other unprofessional litigation conduct) | Court: Suspension appropriate and not an abuse of discretion |
Key Cases Cited
- Dardovitch v. Haltzman, 190 F.3d 125 (3d Cir.) (credibility determinations reserved to factfinder)
- In re Mitchell, 901 F.2d 1179 (3d Cir.) (ABA standards as model for sanctions)
- Office of Disciplinary Counsel v. DiAngelus, 907 A.2d 452 (Pa.) (materiality satisfied where misconduct affected outcome)
- In re Surrick, 338 F.3d 224 (3d Cir.) (district court authority to regulate and discipline counsel)