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.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 Law.com 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.
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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.
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