Philip Kay hit with recommendation of 3 year suspension

Philip Kay, who brought and won the famous Rena Weeks sexual harassment case against a biglaw firm and partner, and who them became embroiled in a fee division dispute with co-counsel, was recommended for severe sanctions stemming from trial misconduct.  

Comments

[Stephen R. Diamond]

The responsive statement of Philip Kay's office is posted here: http://tinyurl.com/yk8yeas

An analysis of the case starts here: http://tinyurl.com/krgx6x

[John Steele]

Stephen,

Where can I access the full response from Kay? I'd like to post the original document, so his side can be heard.

[Monroe Freedman]

The allegations quoted in the (rather purple) responsive statement look like improper conduct to me, and not, as claimed by the defense, an example of either *too* competent lawyering or common practice.

[Stephen R. Diamond]

John,
I'll convey your request to Mr. Kay.

Monroe,
I'll defer response to your observation to an Installment in kanBARoo court, but please understand, I'm not the defense: I don't represent Mr. Kay.

[robin]

john you're an idiot. You're obviously not a trial attorney. Nor do you know know the rules of court. Hope you don't ever need a successful attorney. All of these judges who crapped on Mr. Kay were disqualified by the superior court or the Court of Appeal. They all had contempt power over him, yet never exercised it, they could have declared a mistrial and sanctioned him, yet never did. They all said under oath, if they had done so, they would have been reversed by the COA. All three of these disqualified judges were talking to each other in violation of statutory law, and two of these corrupt judges are being investigated by the judicial commission. So much for your analysis.

[robin]

i apologize to John, i should have said Monroe is an idiot, or a tort reformer.
the only witnesses who this judge allowed to testify in the matter of Mr. Kay,were judges who had been reversed by the Court of Appeal, or had been disqualified. In California, they are not suppose to be able to comment on cases that they have been disqualified in.

[Monroe Freedman]

You're right, robin. I'm the idiot you were referring to, not John. And I'm not a tort reformer, having debated against tort reform on a number of occasions.

I was relying on the statement of charges, and the comment that followed it, asserting that the conduct as charged is "Ordinary courtroom tactics!" (exclamation in the original). It's one thing to deny that the allegations are true, but do you agree with the response that these are (or should be) ordinary courtroom tactics?

"By repeatedly making speaking objections, gratuitous comments, asking the identical or near identical question to questions that had been asked and/or objections sustained to, and arguing in front of the Gober I, Gober II, and Marsicz juries during the evidentiary phase of the trial; by repeating making motions in front of these juries, including motions for mistrial and a motion for a directed verdict, despite the courts' warnings and orders and sustaining of motions to strike and objections; by repeatedly making improper and false accusations against counsels and the courts; by repeatedly suggesting, implying, and directly stating to juries that there was other evidence of misconduct that he were prevented from presenting to these juries; that his clients were being denied a fairhearing; that the evidence of the opposing parties' misconduct was being improperly suppressed or hidden from the juries, in violation of court orders not to disclose information; by repeatedly being rude and unprofessional to the courts and opposing counsels, by repeatedly violating his duties as an officer of the court to act professionally and respectfully to the court, opposing counsels, and other parties; and by his repeated failure to abide by the court's orders and ruling, and assist in the pursuit of the court proceedings, respondent Kay wilfully committed an act or acts of moral turpitude, dishonesty, and corruption."

[Monroe Freedman]

And I guess that I should add in response to robin's ad hominem argument that I have been a trial lawyer in both civil and criminal cases and have taught in the Harvard Trial Advocacy Workshop for thirty years.

[Stephen R. Diamond]

John,

Phil will forward his Petition for Writ of Review when it's done.

Monroe,

The document you refer to in your first post isn't the same as in your second, which could have caused Christine to misunderstand your point. The responsive statement isn't my comment after the statement of charges. I'm convinced Kay has no culpability and hasn't been afforded due process, but Kay has no responsibility for my reasoning at http://tinyurl.com/krgx6x. Kay has never described himself as "too competent"!
Since you're referring to my analysis, not Kay's, I would like to respond. The conduct as literally described *is* "ordinary courtroom conduct." Kay is alleged to engage "repeatedly" in conduct that many competent trial attorneys "repeatedly" engage in. Although the summary of charges pretends describe something unusual, it doesn't in fact.
Did Kay repeat the conduct too many times? That's the real question, despite the summary's pretense. I say he did what an excellent lawyer would do under the circumstances, but regardless of one's assessment, should a professional judgment regarding a matter of degree suspend an attorney's livelihood?
You may disagree with the premise, which involves a largely unnoticed deep division on professional ethics among trial lawyers. Some lawyers, perhaps you, think any repeated disobedient conduct is culpable. "kanBARoo court" discusses this latent philosophical difference among lawyers at http://tinyurl.com/krgx6x ("Officer of the Court Jurisprudence.")

[Stephen R. Diamond]

Sorry, the url for "Officer of the Court Jurisprudence" is http://tinyurl.com/ktguom.

And "Christine" is Robin.

[phil]

This is from the office of Philip Edward Kay:

This is the official statement of my office in response to the State Bar Court decision, which I request you print in its entirety:

“This decision admits it used default, as punishment, in violation of Business & Professions Code §6068(i), because I asserted constitutional and statutory rights of attorney client privilege and work product before answering questions, and demanded the right to have these issues heard and determined by an article VI court of general jurisdiction to determine whether the questions sought privileged information, pursuant to State Bar Rules. The State Bar Court did this knowingly to allow the Office of Chief Trial Counsel the ability to lie about what the Superior Court, Court of Appeal and Supreme Court found in their orders and opinions regarding these important civil rights cases.

In these matters, only after the trial judges were reversed on appeal and disqualified, pursuant to Code of Civil Procedure §§170, et seq., did they claim misconduct. So, either these judges lied in their orders denying misconduct, pursuant to Code of Civil Procedure §657(1) - “irregularities in the proceedings,” OR they lied in their testimony in the State Bar trial. This will create an uncertain and chilling effect by allowing unfit and disgruntled judges to lie about the record and impugn lawfully obtained civil rights verdicts, which have been upheld by the Court of Appeal and Supreme Court. The State Bar Court has allowed these disqualified judges to attack and undermine the very verdicts, which, they could not touch in the trial court under statutory and case law in California

[Richard Baldwin Cook]

A lawyer, Philip Kay, recommended for license suspension for three years? . . . for “rude and disrespectful conduct” . . . for making "false accusations" . . . filing "frivolous motions" and . . . "unrelenting bad behavior." I don't believe any of it.

Apparently, the underlying complaint comes from judges, who are themselves not held, in any meaningful way, to high ethical standards and who may have reason to want to punish a lawyer, who succeeded for his clients despite judicial bias.

I know something about the disciplinary counsel charade.

I have been suspended in three jurisdictions (Louisiana, Hawaii, Maryland) after filing a recusal motion and a "confidential" (don't believe it) complaint against a federal judge, in which I documented his serious misconduct. Nothing happened to the judge; my complaints against him were never investigated. Instead, I was subjected to a sua sponte bar complaint brought by the highest courts in three states. Action was taken against me, after I asked the fifth federal circuit Judicial Council to investigate the judge, who had destroyed my ability to represent my clients in his court, by publicizing my name as a confidential complainant.

I was convicted of interfering with the due administration of justice - by a three-member committee, whose attorney-chairman had business before the judge about whom I complained.

I was never charged with making a false statement. That charge would have raised embarrassing questions for the disciplinary counsel - since the bar counsel knew I was telling the truth about the conduct of the judge.

In their turn, the state judges wanted to signal to the active bar that a lawyer better not "go after the judge" - as a prosecution witness (my opposing counsel) described my actions. I suspect this is what has gotten Mr. Kay in the judicial cross-hairs. Never mind the Canons of Judicial Ethics. Never mind the Judicial Complaint Rules.

By slip-sliding around the truth of my complaints about the federal judge, the highest judges in three states could do him a favor without having to admit that I had been telling the truth about the misconduct of the judge.

For more on the disciplinary travesty to which I was subjected: rbc-in-md.blogspot.com

Part of the job of state disciplinary counsel is to protect the judges against truthful, documented criticism about judicial misbehavior. The disciplinary counsel work for the judges; they do their jobs well. Good luck Mr. Kay.

[Stephen R. Diamond]

The 73rd Installment of kanBARoo court analyzes aspects of the California State Bar Court's opinion in the Kay matter:

73rd Installment. "The Mendacious Judge Armendariz's Kay Opinion" (http://tinyurl.com/ycs6ya7)

[Stephen R. Diamond]

The 76th Installment of _kanBARoo court_ discusses the lawsuit Philip Kay recently filed against the California State Bar.

76th Installment. "Give Philip E. Kay his day before an "honest-to-god judge" (http://tinyurl.com/yzfedzs)

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