Marino v. Usher

Francis Malofiy had practiced law for only a few years when he represented Daniel Marino (plaintiff) in a copyright lawsuit against 20 defendants. During discovery, Malofiy was repeatedly belligerent, abusive, and unprofessional to defendants and their counsel. One defendant described Malofiy’s conduct as menacing. Malofiy’s toxic behavior delayed litigation and drove up costs. William Guice (defendant) was one of the 20 defendants. Guice lacked legal experience and had limited resources. On receiving the complaint, Guice called the number on the front—Malofiy’s number. Malofiy said he represented Marino but did not ask whether Guice had counsel. Malofiy never told Guice that Marino’s interests were adverse to his. Instead, Malofiy falsely told Guice that Marino was not going after him and implied Guice was just a witness. Malofiy then prepared an affidavit with statements harmful to Guice and convinced him to sign it. Thinking he was not being sued, Guice did not get a lawyer or respond to the complaint, and Malofiy obtained an entry of default against him. Malofiy paid to fly Guice from Colorado to Pennsylvania for a deposition. Guice believed he was still only a witness and did not hire a lawyer. At the deposition, Malofiy had Guice repeat the affidavit statements into the record. When opposing counsel questioned him, Guice learned for the first time that he was being sued by Marino for money damages. Guice became upset and ended the deposition early. The parties and court had to expend additional effort and resources before Guice’s deposition could be completed with proper representation. Multiple defendants moved for sanctions against Malofiy under 28 U.S.C. § 1927 and the court’s inherent authority for (1) his discovery misconduct and (2) his unethical interactions with Guice. At the sanctions hearing, Malofiy claimed that inexperience and zeal had caused his questionable conduct.