Monday, December 21, 2009

Professionalism alert Part II - California court issues 3 year suspension to prominent lawyer for being a jerk

Related to the story below, figuratively if not literally, a California court has suspended from practice for three years Philip Kay, a very successful and prominent plaintiff's attorney for "outrageous conduct."  In a 48 page opinion, Judge Lucy Armendariz found, among other things, that 

Kay [engaged in] a "pattern of abuse" toward nearly everyone in the courtrooms of San Diego County . . . .

"Respondent was sarcastic to the court," Armendariz wrote. "He repeatedly badgered, berated, screamed, yelled and/or raised his tone at witnesses and the court, despite court warnings, admonitions and orders not to do this."

She also noted that Kay had often tried to get into evidence issues that had been banned by the court, had accused the judges of bias and had told jurors that opposing counsel was lying.

"Instead of stopping and being respectful and professional," Armendariz wrote, "respondent would repeatedly mock the court and tell it that he would not obey the court's orders and warnings."

Kay denied the allegations before and during the State Bar Court trial, saying he was only being a staunch advocate for his clients. He also accused the San Diego judges of having a vendetta against him.

Kay didn't help himself much at this suspension hearing during which the judge said he continued to be rude, arrogant and defiant including refusing to answer her questions or take the stand when requested.  Indeed, Judge Armenderiz said the only reason she didn't disbar Kay is because his conduct never hurt his clients who often won their cases .  

You can read the rest of the story here courtesy of

I am the scholarship dude.


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People should be careful. This judge took a default in regards to Mr. Kay. in the middle of the trial, for refusing to answer questions based on privilege.Her "findings" are based on deeming the allegations in the complaint to be true. She never reviewed the Actual record of any of these trials. In her decision, all she does is restate the false conclusions that are written in the Complaint. She cites to no actual court orders because their are none. She cites to no findings in a order of the underlying courts that "found" misconduct, because no judge actually issued any. She refused to allow him to put on a defense and X-examine these judges who testified against him and contrary to the record, Court of Appeals Opinions. Go to for the official statement from Mr. Kay's office in response to her decision. The only " detail" she did was copy the Complaint.

Posted by: robin | Dec 21, 2009 2:56:13 PM

I should be noted that this judge does not have contempt power, and ordered Mr. Kay to violate attorney-client privilege. Mr. Kay requested that she send this to a superior court to adjudicate the issue, she refused, and stated he was being contemptuous. Under CA law only under penalty of contempt, not default, can a lawyer be ordered to violate attorney-client privilege.

Posted by: robin | Dec 21, 2009 3:03:00 PM

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

Posted by: phil | Dec 22, 2009 8:21:20 PM

Even if what the State Bar Court said in it's opinion were true, the 9th Circuit said "OFFENSIVE CONDUCT" is not a constitutional basis to discipline an attorney. That decision Wunsch v. USA, was followed up by the Legislature of Calif removing OFFENSIVE CONDUCT, under B&P 6068(f) from the duties of attorneys found in
B&P 6068.
The Primary problem the State Bar has with Kay is that the Bar wants to enforce OFFENSIVE CONDUCT by calling it disrespect for the judiciary. That doesn't fly because In the Yagman case, where Yagman called Manny Real a NAZI and other similar comments, the 9th circuit again said that wasn't a basis for attorney discipline. Political free speech.
However Phil was annoyed by the State Bar Court and it's orders, he should not have refused to take the witness stand without having sought writ of prohibition from the Calif Supremes. Criminal case law makes it an ethical offense for a PROSECUTOR to call a witness to the stand whom that PROSECUTOR KNOWS will take the 5th amendment. After all the State Bar court is not a court of law, but some bastard type of administrative agency that can't be reviewed by the Superior Courts. In re Manny Rose (2000) __ C.4th __.
The number of lawyers who serve the public are shrinking and the Bar is leaving only rogue paralegals who cannot give legal advice and Self-help centers in the courts (which will soon be closed due to finances) to help the public get legal services. That should help the public when they have a dispute with consumer problems, such as bank loan modifications.

Posted by: Brad Henschel, JD | Dec 23, 2009 2:46:33 PM

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