kanBARoo court began with a case (mine) illustrating the State Bar's legal incompetence; today we begin to look at a case where the State Bar takes incompetence to its culmination in a discipline proceeding to disbar a lawyer because he is too competent. The 129-page Notice of Disciplinary Charges delves into the bowels of the trial process to reinforce biased judges' control by disbarring an attorney with demonstrated ability to persuade juries, despite these judges' best efforts to shield Kay's giant corporate opponents, which include Ralphs Grocery Stores and the international law firm Baker & McKenzie.
The Notice of Dislciplinary Charges summarizes the charges at paragraph 375:
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 fair hearing; 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.Ordinary courtroom tactics! Ever since a juvenile Sonia Sotomayor learned law by watching Perry Mason on TV, everyone has known that attorneys don't obey every judicial command or abide by every provision of the law of evidence. Any nonprofessional recalls how at the end of a strong line of inquiry, Perry or D.A. Burger would ask an improper question, only to withdraw it immediately. Like playing pinball, a trial lawyer must play close to the edge of losing by tilt. Unlike pinball, legal rule boundaries aren't mechanically fixed; they vary from court to court, for one reason because judges will hesitate to invoke their terrible contempt powers while they themselves commit misconduct. A pinball player hasn't tilted unless he forfeits; an attorney in open court hasn't culpably violated a court order unless held in contempt. The State Bar has become the instrument of biased judges seeking vindication proven unjustified by their reluctance to hold Philip Kay in contempt of court.
This Installment begins a series on the Philip E. Kay State Bar Matter. The following subinstallments will discuss the threat to all lawyers of the State Bar's ability to bring moral-turpitude charges for common trial tactics; the State Bar's fee-splitting charges; the significance of belated charging (7-year investigation of a matter based on public record); and more.