The Hearing Department entered Philip E. Kay's default when Kay refused to retake the stand after the Hearing Department judge not only denied objections on matters of privilege — such as the terms of his fee agreement with his former client Weeks — but also began entering his refusals to answer as affirmative inculpating responses. Kay filed a comprehensive petition for interlocutory review to oppose the California State Bar Court Hearing Department's entry of default. Kay's papers in opposition included his promise to resume testifying if the court set the default aside. Without explanation, the Review Department of the State Bar Court recently denied the petition.
Assessing tactics is part of educating respondents in how to fight the State Bar, since lawyers don't usually understand the different tactical terrain in State Bar Court, which, instead of treating them legally, treats all its cases with political animus. Respondents can achieve their legal goals, if at all, only by setting forth the starkest facts and crispest arguments on appeal. Often, a respondent may only hope to make the clearest demonstration of judicial error for the public's edification. In my case, I think that the trial court stood in a weaker position due to its failure to protect the most basic due-process rights than due to its proceeding on a statutorily defective Notice of Disciplinary Charges. Since the adequacy of the NDC is arguable and Melanie J. Lawrence's malfeasance isn't, I opted to rest my case on the malfeasance, despite the cost of default.
I apply the same criterion of outcome clarity to Kay's tactical choices to reach a different conclusion about his default; but note, Kay's tactics should be considered, as the economists say, ex ante: from the perspective of knowledge then available. While we know Kay's default was entered, we don't know that Kay could have known the same or, more importantly, that any attorney any time would suffer the same injustice. We don't know that Kay's attempt to come before an Article 6 court was doomed from the start mainly because we don't know all the political influences at play. Kay's mistake wasn't failing to anticipate entry of default; if an Article 6 court was a probable source of relief, Kay's attempt to reach one wasn't irrational, since success wasn't foreclosed.
Kay's mistake, in my view, was his confidence in the Article 6 courts. The Richard I. Fine case, my case — even the inception of Kay's case — show that the courts of record will not refuse the State Bar. Superior court judges initiated the Fine and Kay cases. In Fine's, Superior Court Judge Yaffe took off from where the State Bar left the matter, and Fine remains in jail, there for more than a half year. In my case, the Supreme Court silently refused to address proof that the Office of the Chief Trial Counsel and a Review Department clerk tampered with the record to cause entry of default.
After putting aside reliance on the Article 6 courts, we still haven't completely answered the tactical question. We have to consider whether Kay leaves a better record by suffering the unlawful entry of default or suffering a finding of culpability unsupported by the evidence. Kay's statute-of-limitations argument based on the Konig documents is highly persuasive; the argument based on the unlawful default is hard for many to understand: the absurdity of the Bar Court's self-proclaimed inherent powers is hidden by the California Supreme Court's vague language from the days when it still pretended to perform its State Bar supervisory duties. (See, for example, Jones v. State Bar (1989) 49 Cal.3d 273, 287 [discretion of hearing referee to exercise "reasonable control over the proceedings ..."].) For impact, Kay should prefer a finding of culpability unsupported by the evidence to an unlawful entry of default.
