Sunday, January 3, 2010

Mouthpiece Hall of Infamy--Philip Edward Kay

Let me quote the preface of the disciplinary opinion that culminated in the 3 year supsension of Bad Lawyer, Philip Edward Kay of California:  "This is an unfortunate case.   A savvy, experience attorney fought hard for clients in several noted sexual harassment cases and won huge awards on their behalf.  But somewhere in his overzealous advocacy, he lost it, not the cases, his integrity, professional decorum, credibility and respect of the court."  An account of the disciplinary trial can be found at this link.

Phil Kay is prominent in California lawyer.  He won buckets of money for victims of workplace sexual harassment in the late 1990 until his recent suspension.  Kay won a $30 million dollar lawsuit against the Ralph's Grocery chain (a subsidiary of Krogers), he won a $6.2 million dollar verdict against mega-lawfirm Baker and MacKenzie, and so on and on.  Here's the link to his former firm website (which is now devoid of any mention of Kay--but, amazingly calls itself, "California's best sexual harassment, discrimination . . . law firm.")

Kay is an attorney in the apparent mode of legendary verbal flamthrowers like Mouthpiece Hall of Infamy honoree:  Geoffrey Fieger.  Let's consider what the article had to say on Kay's alleged misconduct:  State Bar documents accuse Kay of causing all kinds of trouble during [a sexual harassment] trial.

Kay is accused of yelling and screaming at witnesses, opposing counsel and Judge Weber; ignoring Weber's orders by asking questions that were prohibited; and openly accusing Weber of bias. State Bar prosecutors contend that Kay almost got into a fight in a hallway with opposing counsel and took a tone so severe with Judge Weber that her bailiff threatened to remove him from the courtroom.

"Kay was repeatedly warned by the court that his conduct was improper and that as an officer of the court he had a responsibility to be professional, polite to all counsel, the court and the witnesses," [disciplinary counsel] wrote in his charging documents. "Despite these warnings, admonitions and directions, respondent Kay continued to be unprofessional, disrespectful and rude."

The State Bar also printed verbatim comments by Kay and Judge Weber [the sexual harassment trial judge].

"Sir, I will tell you what," Weber said at one point. "I have had to [resist] a thousand times sanctioning you in front of the jury ... I have never, ever seen an attorney more rude and disrespectful on so many levels."

Nonetheless, Weber never held Kay in contempt or sanctioned him, even though the judge said she found it a "close call" that his conduct had potentially prejudiced the jury.
Several observations, I don't know Philip Kay, but I do know what it is like to be involved in sexual harassment litigation.  I can not justify, Mr. Kay's reported and apparently documented misconduct, but I do know that dealing with opposing counsel in flamboyant situations involving sexual misconduct allegations the stakes are raised--it is often, not unlike trying a case agaisnt Eddie Haskell from Leave it to Beaver; opposing counsel can be the dirtiest, underhanded, evil advocates in the world--who on the record and in court are perfect ladies and gentlemen.  Obviously, this does not excuse discourteous conduct, but just for the purpose of giving you some perspective, sometimes what seems "overzealous" is behavior which was wholly-provoked.

But there is no denying that Philip Kay is an over-the-top guy.  Full-dorsal-fin, you don't call your law firm the "best" in online advertising if you are fully in the face of disciplinary authorities since the ethical canons really prohibit self-aggrandizement in lawyer advertising. 

Canons of ethics once required lawyers "to zealously represent their clients."  This unfortunately became a fig leaf for rude, unprofessional, in-your-face misconduct by lawyers like Fieger and Kay.  On the otherhand, your "over-"zealous advocacy may be in the eyes of the beholder when that which stands between your client and injustice is your verbal aggressiveness, at least this is the rationalization of the verbal flamethrowers.  Here's the point, over do it in court, over do it and your client LOSES.  How,then, do you justify your unprofessionalism?  Iin both the Fieger situation and with Kay, they win eye-popping verdicts for clients, but when the pissed-off appellate courts vacate what has their advocacy gained for your client?  Oh, by the way, at least in the Bad Lawyer's jurisdiction that requirement to zealously represent your client language has been erased--the focus these days is on competence.

I'm also just a little troubled by the intorductory language of the disciplinary opinion vis-a-vis Kay authored by Judge Lucy Armendariz, she said, once again,  "A savvy, experience attorney fought hard for clients in several noted sexual harassment cases and won huge awards on their behalf. But somewhere in his overzealous advocacy, he lost it, not the cases, his integrity, professional decorum, credibility and respect of the court."  It sounds to me like Judge Armendaiz' places an inordinate value on the buckets of money Kay was able to win for his clients--that that was his worth as an attorney.  Then she says he lost the "respect of the court."  Seriously?  Well, Judge the court includes the jury;  and,  apparently Mr. Kay didn't lose their respect. 

Philip Kay was convicted of 16 disciplinary counts, you can read the entire opinion, his financial dealings are implicated in the disciplinary findings.  I will take this opportunity to work in an observation that will remarkably sound like "everybody does it"--sorts of rationalizations.  Everybody does not do what Philip Kay did, what I did, what other Bad Lawyers do--but, let me ask you to pause for a moment.   Ask yourself, if the disciplinary authorities subpoena the financial records of any law firm that you are aware requiring them to account for their expenditures what do you guess will be the rate of disciplinary prosecutions in your jurisdiction?  You see, the disciplinary authorities will give you a proctological examination--all will be punish-ed.


  1. I think the hardest thing for those of us who are law-and-justice obsessed--ie, who, like me, have an exaggerated notion of "fairness"-- is that the law so often seems to be selectively enforced. So the things that, perhaps, you or I are slammed for are the very behaviors that others have built successful careers on. There's no solution for this problem, of course--but I'm always reminded of Kafka's "Before the Law." The poor schmuck waits his whole life for access to the law, wondering why no one else is trying to get in, and finds out in his last moments that the door was only ever for him. I interpret this to mean that the law is not, never can be, universally applied, no matter what Kant thought. It's always going to be selective. That's why we need these juridical religious structures. In real life, all are never punish-ed. Only some.

  2. Gayle knows that the expression--all will be punishe-ed comes from Romeo and Juliet, because she wrrites the best blog on the internet looking at Shakespeare and because sshe drew my attention to the closing line from that drama.

    It is true that there is a random quality to all things in life, death, luck, and disciplinary.

    These truths don't change our obligation to take action, which by writing about them we are at least doing something. Ripples, or ripplettinos may they be.

  3. one needs to read the official response from Phil Kay's office. see at
    The verdicts were not taken away by the COA. There was never a mistrial. Mistrial motions are not post-trial motions, There can be no "judgment" if a mistrial motion is granted. The punitive damages were reduced based upon constiutional grounds only. Read the Published COA opinion "Ralphs v. Gober, 137 Cal.App.4th 204. The only one lying is Judge Armendariz

    Phil Kay's Office

  4. Phil Kay was awarded over 2 million dollars for the work in the Gober Matter. By the Superior Court and upheld on appeal. How can a Superior Court grant attorneys fees, while the Plaintiffs lawyer was engaging in cirminal contempt? He was awarded attorneys fees pursuant to FEHA. Armendariz cites to no orders, there were none. Judge Weber saying there was, does not amount to an order. Anello hounded the bar to file these charges for over six years, even after the COA disqualifed him in the interests of justice. Pursuant to CCP 170 et seq. The state Bar will never be able to go through Kay's Financial records. No client ever complained or was harmed. The puzzle is, how can these verdicts and judgements be upheld if in fact "obstruction of justice occurred? In Marcisz the COA reinstated the judgemtnt and verdict, except for the amount of puni's. How can they do that if, the losing corporation was denied a fair trial. The CJP is looking into this as we speak.

  5. Then she says he lost the "respect of the court." Seriously? Well, Judge the court includes the jury; and, apparently Mr. Kay didn't lose their respect.
    If you read the CA Court of Appeals opinions for Mr. Kay's cases (the cases which State Bar Judge Arminderiz refers to) you will find that he did not lose the respect of the courts either. How can the COA rule favorably for Kay and THEN the State Bar suspend him? Perhaps a "Bad Judge" website should get to the bottom of this.

  6. Don't know who you are, however thanks for the obvious acknowledgment. No, seriously. Very few people read the actual published opinion. The State Bar does not have jurisdiction to overrule the actual judicial courts. The state Bar court is not a judicial court, it's an administrative tribunal. The state bar allowed a disqualified judge[by the COA] to use them as a proxy to resurrect his "public" reputation. It was totally illegal, yet few, including this website's owner are willing to publish that. Kudo's to you. However, the State Bar will exonerate Tom Giraidi, who was the State Bar's presidents partner, who was sanctioned $300,000.00 and found to have perpetrated a fraud on the court by the Federal courts go. the Cal State Bar is nothing more than a political hatchet job for big corporations and their attorneys. Too bad this website won't write about that.

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  8. Here is my take on it: Cal Bar Corruption... LA DA Corruption... Supervisor Corruption... It's a big RACKETEERING FRAUD RING protecting each other.

    The only lawyer you can really trust is one who has been questionably suspended by the State Bar of California

    Here take a look at the real leaders of the free world at the link below

    When we do this in every County across America we will be the Leaders of the Free World! For now we will have to be satisfied being THE LEADERS OF A MISDIRECTED, NEW WORLD ORDER!

    Peace and may the revolution happen sooner than later!

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