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Famed Plaintiffs Lawyer Faces Bar Charges Over Conduct
California Bar Court's review department on Tuesday rejected nationally known lawyer's motion to have charges dismissed
The Recorder
December 05, 2008
Nationally known San Francisco civil rights lawyer Philip Kay has won millions of dollars for clients in discrimination and sexual harassment cases over the past 25 years.
But he might be facing his biggest fight with State Bar prosecutors, who have charged him with turning two cases before three San Diego judges into three-ring circuses by repeatedly impugning court orders and caustically accusing the judges of misconduct in front of jurors.
Prosecutors also claim Kay entered into an illegal fee-splitting agreement in his most high-profile case -- a sexual harassment suit against mega-law firm Baker & McKenzie that in 1994 resulted in a $6.9 million San Francisco jury award for his client, former legal secretary Rena Weeks. (The judgment was later reduced to $3.5 million.)
Kay's motion to have the charges dismissed was rejected Tuesday by the State Bar Court's review department.
State Bar Supervising Trial Counsel Allen Blumenthal, who's prosecuting Kay, wouldn't say Wednesday what punishment he intends to seek, but he called the charges "serious."
John Dalton, a Solana Beach, Calif., solo who co-counseled with Kay, is charged with the same violations of Bar rules in regard to clashes with judges, but the State Bar seemed to focus most of its wrath on Kay. State Bar records show no prior discipline charges against either Kay or Dalton.
In court documents, Kay's attorney, Pasadena, Calif., solo Jason Oliver, called the charges against both men "an utter abuse of prosecutorial duty" and argued that the State Bar's allegations are part of a "vendetta" by two of the judges with whom Kay clashed.
"I still don't understand why these judges were so hostile about these cases," Kay, a lawyer for 27 years, said Wednesday. "Let's say they had a personal issue with me, they didn't like my face. Well, they still have an obligation to make sure my clients get a fair trial.
"If I was as bad as they are making it out," he added, "why would I have not come out of the trial in handcuffs, and held in contempt and sanctioned and found to have violated the defendants' rights to a fair trial? That did not happen."
The State Bar's 129-page charging document, filed in June, lists dozens of examples of clashes between Kay and San Diego County Superior Court Judges Joan Weber and Michael Anello during a suit against Ralphs Grocery Co. The case was filed by six former employees who claimed a store manager had sexually harassed them.
Jurors awarded the six women $550,000 in compensatory damages and $3.3 million in punitives in 1998. But State Bar documents accuse Kay of causing all kinds of trouble during the 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," Blumenthal 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.
"Sir, I will tell you what," Weber said at one point. "I have had to withstand 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. But in 2000, San Diego's 4th District Court of Appeal sent the case back for a new trial on the punitive damages alone.
Weber recused herself because of a conflict that had developed, and Judge Anello stepped in for the retrial. State Bar prosecutors contend Anello got as little respect as had Weber.
"Despite the court's repeated warnings and admonitions," Blumenthal wrote in court papers, "respondent Kay repeatedly made speaking objections, gratuitous comments, argued in front of the jury, raised his voice, repeatedly continued to talk when the court told him to stop, made personal attacks against opposing counsel, and repeatedly made motions in front of the jury."
Again, though, Kay wasn't sanctioned or held in contempt, even though Judge Anello found that Kay's "unrelenting" conduct "improperly inflamed the jury and resulted in a verdict framed by passion and prejudice." Jurors in 2002 awarded his six clients $5 million each. The 4th District later reduced the award.
State Bar prosecutors contend that in 2005 Kay -- during a sexual harassment case against the UltraStar Cinemas -- was back at it, subjecting San Diego County Superior Court Judge John Meyer to the same kind of abuse he had heaped on Weber and Anello.
In a motion to dismiss, Kay's attorney, Oliver, argued that in the Ralphs Grocery case, Kay was only challenging rulings by Weber and Anello that he thought were wrong.
Among them, he argued that Weber inconceivably excluded all complaints by customers against the store manager, saying that only employee complaints were relevant, and he contended that Anello called the Ralphs Grocery case "notorious" at their first meeting and asked if Kay would be willing to settle.
In addition, Kay accused Weber and Anello of having improper ex parte communications about him after Weber had recused herself from the case.
"The only claim that can be made," Oliver wrote in Kay's court papers, "is that Mr. Kay, while acting as a zealous advocate for his clients, offended the sensibilities of two judges who were engaging in judicial misconduct."
One of the plaintiffs in the Ralphs Grocery case has petitioned the California Supreme Court for review, claiming that Anello's communications with Weber tainted the proceedings.
Anello, who's now a federal judge in San Diego, declined to comment Wednesday on the State Bar case. Judge Weber didn't return a telephone call.
There is no record of misconduct by either judge, even though Kay said he filed a complaint with the Commission on Judicial Performance against Anello.
Kay seemed most surprised that prosecutors charged him with violating State Bar rules by entering into a fee-splitting agreement with San Francisco solo Arthur Chambers in Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128.
In 2002, the California Supreme Court in Chambers v. Kay, 29 Cal.4th 142, nullified the agreement, saying that Kay hadn't gotten his client's consent as required by State Bar rules. But Kay wasn't sanctioned.
Even so, State Bar prosecutors argue that the agreement with Chambers -- and another with Alan Exelrod, a partner in San Francisco's Rudy Exelrod & Zieff -- violated State Bar rules.
"Kay failed to disclose in writing to his clients," prosecutor Blumenthal wrote, "that a division of fees would be made with Mr. Exelrod and Mr. Chambers and the terms of such division."
Kay expressed irritation Wednesday. "The Supreme Court resolved the issue," he said, "and the reason that case was brought is because I didn't divide a fee. And now [State Bar prosecutors] are accusing me of dividing a fee."
In the Matter of Kay, 01-O-01930, is currently set for trial for several days in mid-March.
Kay said Wednesday he no longer takes cases in San Diego County because he doesn't believe his clients could get a fair trial.
Dalton, meanwhile, said the allegations are "killing" his practice. Court papers filed on his behalf by Oliver note that Judge Weber singled out Dalton, an attorney for 12 years, for his "nothing but professional" conduct, and that Judge Anello never accused him in court of inappropriate behavior.
"I'm just a simple attorney trying to do my work and want nothing more than to be left alone to represent my clients," Dalton said Wednesday. "I'm a champion for individual rights. That's all I want to do."
