Interlude 17. Statement by Philip E. Kay

Here's the latest development in the Philip E. Kay matter, covered extensively by kanBARoo court. The State Bar Court recommended yesterday a three-year suspension and five-year probationary period. Mr. Kay's State Bar status is unaffected until the California Supreme Court acts. kanBARoo court reserves analysis of the decision for another Installment, to present verbatim the response of Mr. Kay's office:

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.

71st Installment. Plight of the Disciplined Attorney

The dominance of the state bars in legal ethics constricts the profession's ethical vision. State-bar moralism misdirects legal ethics toward enforcing compliance with judges and trivializes legal ethics with over-concern with negligent misappropriation. kanBARoo court will also explore the broader ethical horizons.

Ethical irresponsibility's first face is state-bar indifference to ethical problems bar prosecutors inflict on the profession; the California State Bar is heedless of the ethical morass suspensions produce after the attorney resumes practice. Attorneys disciplined for disobedience to court orders face bias from judges and harassment by opponents who bring the former respondent's State Bar record to the court's attention to support their sanctions' motions.

The State Bar has avoided noting the repercussions of its own operation, where an attorney's client can easily suffer prejudice or loss of confidence in attorney because of prejudice's scent. A client has little reason to anticipate that one consequence of attorney selection is judicial bias the legal apparatus blithely creates; a client legitimately expects that the legal system will strive to avoid prejudicing itself! Judges have so strong an interest in managing attorneys who have troubled the courts that protecting system integrity requires barring judges from accessing disciplinary information without cause.

Opposing a sanctions motion alleging a frivolous filing intended to harass is a serious matter for a previously disciplined attorney, as the former culpability will aggravate the offense. When the motion incorporates Bar-discipline history, the court should presume the mover's intent to threaten, this intent violating Rules of Professional Conduct, rule 5 – 100, barring Members from threatening State Bar action to secure civil-litigation ends:

A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

The State Bar would never consider applying rule 5 – 100 to punish harassing motions invoking prior-discipline records, and the litigation privilege precludes relief through civil procedure. (See Civ. Code, § 47.) The best immediate response to such harassment is to move for sanctions against the maker of the sanctions motion under the same code section. (See Code Civ. Proc., § 128.7.)