Wednesday, May 27, 2009

64th Installment. The Philip E. Kay Calumny

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.


Chris said...

Thanks for the post on Mr. Kays situation, I will be looking forward to more.

Anonymous said...

I don't know what happened in your case. I can only assume that you were not given a fair shake, and that the State Bar is as broken as you say it is. But if you are truly seeking to expose the need for State Bar reform, Phil Kay is not the horse to bet on. I know something of his antics (and those of his counsel), and to describe them as "ordinary courtroom tactics" truly degrades our profession. I am certain there are others out there who are far more worthy of your obvious writing skill, and who would serve as much better poster children for this cause.

Stephen R. Diamond said...


If Phil Kay is so obstreperous, why has he never been cited or sanctioned for courtroom conduct?

Anonymous said...

In 1990 Johns-Hopkins Completed a study which found that Lawyers suffer mental illness far out of proportion to the General Public. The Bar allows the Mentally ill to take the bar exam IF they complete form 10 proving they are mentally ill to comply with ADA.
Many studies show that going to law school makes people mentally ill. Those studies show the reason Lawyers have the highest rate of suicide, they suffer from mental illness at high rates over 50%.
The Bar's LAP program found that lawyers addicted to drugs and alcohol were really self medicating their mental illness because of the stigma of admitting one has mental illness.
The BAR then seeks to make attorney involuntary inactive under 6007(b)(3) drug addiction/Mental illness.
The Bar prosecutors as attorneys are displaying mental illness in doing their job. Only a mentally ill person can commit crimes against justice, write and submit false declarations and act dishonestly, while thinking they are protecting the public. It's sort of a Blues Bros. Mission from God type thinking.
However, what the Bar is doing is taking lawyers away from the public so effectively that most people cannot find an affordable Bankruptcy, Family or civil lawyer. As a direct result of the Bar's war on itself, Self-Help centers have popped up in Calif Courts where Clerks supervise untrained volunteers practicing law by showing pro pers what forms to use and how to fill them out so the pro pers don't use up so much of the time of the courts.
However, those lawyers who serve the general public are only a small portion of the Bar. Most lawyers are in public service or are in-house corporate lawyers, such as the entertainment lawyers employed by Disney, and other similar corporations.

Anonymous said...

What is not being mentioned about the Phil Kay case is that Judge Weber testified that the Statements made by the Bar and it's investigators, attributed to her, that Atty Dalton's actions were worse than Phil Kays, WERE FALSE!!
Now the Bar is trying to backpedal as to Dalton and issue a warning letter. That means that either Judge Weber is lying or the Bar and it's investigators are lying. Judge Weber was adamant that she NEVER told the Bar investigators that Dalton was worse
than Kay in his behavior.
The Bar doesn't get disciplined for lying because there is no accountability, so they lie all the time, orally and in writing. The Kay-Dalton case is just one example of the Bar and it's investigators making false representations, a criminal violation under B&P 6128. Of course when two or more bar employees lie that's a criminal conspiracy against the respondent.
Also what the bar and the Judges are not considering is that as the Bar goes after winners of lawsuits, like Phil Kay, the corporate losers will simply include false allegations into their quiver of defenses to their case.
I witness lawyers committing ethical violations daily. They are ignorant of basic criminal law and basic ethics law for the most part. What the everyday lawyer doesn't get is they are next. It's just a matter of time.
I remain anonymous because the bar reads this blog, I know that for a fact, and they tend to go after anyone who displeases them, kinda like a dictator.
I have been influential in getting law students to leave California and go elsewhere to practice law, so they can pay off their student loans without losing their licenses.
To paraphrase ethics expert Diane Karpman, who refuses to have a client trust account herslef, those rules on trust accounts are so vague and ambiguous there is no way to NOT violate them.
The Bar is out of control, they allow their employees to steal, as the Bar's Real Estate Director Got caught stealing $650K this year, but they think they have a lifetime job. They got shookup when the Board Fired Drexel, as OCTC. Phil Kay is just the tip of the iceberg. The Bar is going to go after any high profile, non-large firm lawyer, including DDAs and Dep. Public Defenders. They are Hitler, Stalin and Pol Pot all rolled into one agency, but not as nice as those three former country leaders.

Anonymous said...

AT the State Bar Ethics Symposium, held in San Diego, CA, Dean Chemerinsky spoke at lunch. What he had to say was so distrubing no one there applauded when he finished because they were so stunned, it was dead silent as he left the podium.
He started by announcing the suicide that day of a Partner in a large law firm. He went on to say the lay offs and closing of law offices, all around the country as well as California, made it impossible for bar candidates to get any law related job.
He explained that major law schools were not getting their loans repaid from former and current students because of lack of work. He asked current lawyers to put their own hand in their own pockets to the tune of $1000 each and help fund law students to do pro bono work for the public.
You may not know this but Dean Chemerinsky practices law in Federal Courts without being a member of the State Bar of Calif. His ONLY bar affiliation is with the Wash. DC bar. Yet he gives legal advice on a regular basis, because he doesn't attack the State Bar's UPL (Unauthorized/Unlawful Practice of Law) activities. (See Benninghoff v. State Bar (2006) __ CA4th __.
The attendees, who were mainly Bar employees, Bar officers, and the cream of the Ethics defense bar asked no questions, they were shocked these words came from the eternal optimist, Chemerinsky.
The LAP program directors have discovered that the drug and alcohol problems of Attorneys stem mainly from self medicating serious mental illness problems.
The Washington State Bar did a study and found that 1/2 of all Washington State Lawyers think about suicide a minimum of once a month. Another study showed that just going to law school ramps up mental illness from 4% of 1st year law student to 40% of the 3rd year law students. That study showed that when the students pass the bar and practice law, their mental problems increase.
Lawyers are the number one profession or occupation which commits suicide.
Query: Where do we get judges?
Answer: From Lawyers.
This can explain the paranoia and other mental problems lawyers notice in Judges. The asylum is being run by the mentally disturbed. Is it a good idea to put the mentally ill in charge of the law? The American's with Disability Act says yes, so then why does the bar remove the mentally ill from the practice of law? B&P 6007(b)(3)