The lawyer who failed to persuade a Los Angeles jury in June that Led Zeppelin stole the introduction of Stairway to Heaven from an earlier song by LA rock band Spirit has been suspended from practicing law. He was cited for “serious misconduct” and violating rules of professional conduct during a previous case.
Francis Malofiy was suspended for three months and one day after a federal appeals court this week upheld last year’s suspension by a panel of US district judges in Pennsylvania.
The disciplinary action arose from a case in which Malofiy unsuccessfully represented songwriter Dan Marino, claiming Marino was denied credit for co-writing the song Bad Girl, which Usher recorded and included on his album Confessions.
The suspension was ordered because the panel found that Malofiy obtained an affidavit from a witness in that case without disclosing that he was an adversary of the witness. The court also said that it chose to suspend Malofiy because he refused to accept responsibility for his actions and continued to misrepresent facts during an investigation of the accusations.
“The Report concluded, after full consideration, that neither a reprimand — [n]or private discipline — is a sufficient sanction in light of the serious misconduct in this case,” court documents state.
During that trial, US district judge Paul S. Diamond admonished Malofiy several times and wrote a memorandum stating, “It is difficult to convey the poisonous atmosphere created by Malofiy’s continual belligerence to opposing counsel.” Diamond noted that 17 of 20 defendants had asked for sanctions against Malofiy for his behaviour.
“These are extraordinary measures that you almost never see in court,” Bruce L. Castor Jr., an attorney for one of the defendants in the Usher case, told the Philadelphia Inquirer in 2014. “I’ve almost never seen one, much less all of them.”
Malofiy appealed the Pennsylvania court’s suspension order, but it was upheld on Thursday by a three-member appeals panel. In addition to the suspension, Malofiy was ordered to pay court costs.
Malofiy also was admonished numerous times during the seven-day Led Zeppelin-Spirit trial. One report tallied more than 100 objections that were sustained by Judge R. Gary Klausner over multiple days of testimony.
The suspension could derail, or at least postpone, any plan Maloify might have to appeal the decision in the Led Zeppelin case, because California courts require lawyers not residing in the state to be in good standing in another state.
