Discipline Proposed For “High Profile” Attorney

From the January 2010 online edition of the California Bar Journal:

In an unusually scathing opinion, a State Bar Court judgerecommended that high profile San Francisco attorney Philip Kay besuspended for three years, citing his “rude and disrespectful conduct”during three trials as well as false accusations, frivolous motions andunrelenting bad behavior. The suspension will take effect if theSupreme Court signs off.

Kay, who is well-known for hissuccessful sexual harassment lawsuits, including a 1994 case in which alegal secretary won a $6.9 million jury verdict against a Palo Altoattorney, was charged by the State Bar with 19 counts of misconduct.

JudgeLucy Armendariz found him guilty of 16 counts, including charges ofmisleading the court, improper contact with jurors, splitting fees witha non-lawyer and committing acts of moral turpitude. But she reservedher most caustic comments for what she called Kay’s “insolent behavior.”

“Somewhereduring his overzealous advocacy, he lost it,” Armendariz wrote in a48-page ruling, “. . . not the cases, but his integrity, professionaldecorum, credibility and respect of the court.”

Kay, 56, saidduring his lengthy trial last spring that he expected to be disbarred.In an e-mail message, he accused bar prosecutors of lying about whatvarious courts had ruled in opinions and orders regarding the cases inquestion. The suspension was recommended because “I assertedconstitutional and statutory rights of attorney client privilege andwork product before answering questions,” he added.

Most ofthe misconduct charges stemmed from two cases, a 1998 sexual harassmenttrial and 2002 retrial against Ralphs Grocery Stores and a sexualharassment trial against Ultrastar Cinemas in 2005. Kay’s clients wonjury verdicts of $30 million in the Ralphs litigation and nearly $7million in the Ultrastar case.

But throughout both trials,Armendariz said, Kay made gratuitous comments and offensive statements,was disruptive, repeatedly asked identical, almost identical orinadmissible questions despite the court’s warnings, and argued withthe court. He was sarcastic or snide to witnesses, the judge said,badgering, berating or yelling at them. He made personal attacks onopposing counsel, including telling one jury that the other attorneylied, was unprofessional and violated ethical duties and court orders,Armendariz said. And he made false accusations against the courts,charging the judges were biased, unfair and intellectually dishonestand they committed judicial misconduct and distorted the record.

Allthese statements, the judge wrote, caused trial delays, interfered withthe proceedings and “were made with the intent to deprive thedefendant” of a fair trial and to appeal to the jury’s passion andprejudice.

At the conclusion of the first Ralphs trial, thecourt granted a mistrial based on juror misconduct. Ralphs also movedfor a mistrial based on attorney misconduct, leading Judge Joan Weberto say, “I found Mr. Kay’s conduct throughout the case to beexceedingly unprofessional.” In particular, she cited Kay’s accusationsthat his opposing counsel committed perjury and violated her oath as anofficer of the court. “I have never heard an attorney make suchoutrageous allegations in a closing argument against opposing counsel,”Weber wrote. “It sickened me to hear it.”

Following a secondtrial, the court granted a third trial on punitive damages, findingthat the jury’s award was inflated due in large part to Kay’smisconduct.

After the jury in the Ultrastar matter awarded$6.85 million to Kay’s clients, Ultrastar moved for a new trial,arguing among other things that Kay’s misconduct unfairly prejudicedthe defendants and necessitated a new trial. When a new trial wasgranted, the court included a tentative ruling that stated, “The jury’sexcessive awards may be explained by Attorney Kay’s overall conduct.”(The case is currently awaiting another trial.)

Kay said thejudges in the two cases claimed misconduct only after they were“reversed on appeal and disqualified . . . OR they lied in theirtestimony in the State Bar trial.

“This will create anuncertain and chilling effect by allowing unfit and disgruntled judgesto lie about the record and impugn lawfully obtained civil rightsverdicts, which have been upheld by the Court of Appeal and SupremeCourt.”

Armendariz found that Kay failed to obey courtorders, maintain respect to the courts, sought to mislead the jury andcommitted several acts of moral turpitude. His behavior wasted courttime, delayed clients’ rights to receive their judgment awards and madethe operation of the justice system “more burdensome,” the judge said.

Shenoted that the “unrestrained personal abuse and disruptive behaviorthat characterized (Kay’s) conduct in the underlying court proceedings”was repeated during his trial before the bar. After 11 days, hisdefault was entered when he refused to take the witness stand,Armendariz said, and she ticked off a list of 15 behavioral sins shesaid Kay committed during the bar court trial.

Although theState Bar asked that Kay be disbarred, Armendariz said such apunishment would be unduly harsh. Kay did not engage in intentionaldeceit or commit fraud against his clients, nor did he breach his dutyof loyalty. “In fact,” Armendariz wrote, “he zealously litigatedseveral sexual harassment lawsuits and won; but he had also causedcollateral damage to himself, to the administration of justice and tohis clients without recognition of any wrongdoing.”

AllenBlumenthal, who prosecuted the case for the State Bar, said his office“is pleased that the court agreed with us about Mr. Kay’sunprofessional conduct. We believe this shows that attorneys, no matterhow famous or successful, are going to be held accountable for theirin-trial conduct and their obstruction to the orderly administration ofjustice.”

Blumenthal said his office has not yet decided whether to appeal and seek Kay’s disbarment.

A brief web search revealed that the Legal Writing Prof Blog already had this story, with a link to the opinion. (Mike Frisch)