Is feisty lawyer a zealous advocate or unprofessional?

A San Francisco attorney who made his name trying high-profile sexual harassment cases is on trial before the State Bar, accused of unprofessional and disrespectful behavior during three of those trials. PHILIP EDWARD KAY [#99830], 56, of San Francisco is fiercely fighting the charges in testimony dominated by defiant objections, charges of prosecutorial and judicial misconduct and meandering responses to yes-or-no questions. Kay’s co-counsel on the cases, JOHN WILLIAM DALTON [#183685], 46, of Solana Beach, also is charged with misconduct. Together, they face 21 counts, including moral turpitude and failing to maintain respect for the courts.

The bar is seeking Kay’s disbarment and a six-month to two-year suspension for Dalton.

Although both lawyers are named in the charges, much of the 129-page notice of misconduct spells out Kay’s alleged bad behavior in two cases, a 1998 sexual harassment trial and 2002 retrial against Ralphs Grocery Stores and a sexual harassment trial against Ultrastar Cinemas in 2005. His clients won jury verdicts of $30 million in the Ralphs litigation and nearly $7 million in the Ultrastar case.

The bar accuses Kay of repeatedly engaging in disrespectful behavior during the Ralphs litigation, including asking argumentative questions to elicit inadmissible and prejudicial answers, making gratuitous comments, arguing with the court and making personal attacks on opposing counsel in front of the jury, making false accusations against the judge and opposing counsel, yelling, and generally being rude and disrespectful. All this, the bar charges, despite repeated warnings from the judge and instructions about his responsibility to be professional and polite. His behavior both inflamed the jury and came close to interfering with Ralphs’ right to a fair trial, according to the charges.

Although bar prosecutors estimated the case should take two or three weeks, Kay said he believes he needs six months to defend himself as he pursues a strategy in which his demeanor is similar to that which drew the charges.

While on the stand for two weeks at the end of March, Kay repeatedly sparred with State Bar prosecutor Allen Blumenthal, raising multiple objections and accusing him of cherry picking evidence to “create a false impression.” Virtually every question drew objections based on hearsay, relevance or lack of foundation, along with a demand that the bar reveal future witness testimony. Kay’s often windy answers offered lessons on procedural requirements and how to conduct a trial, instructions about the statutes that govern trial practice and explanations for preserving the record for appeal.

He repeatedly demanded to know the grounds for Judge Lucy Armendariz’ rulings and complained that his rights are being violated. “Your honor, this is totally irrelevant,” he said about one line of questioning. “Why are we going there? Why are we wasting time here?” He accused Armendariz of making false statements and applying the law inequitably, and told her at one point, “The manner in which you’re running this trial is unbelievable.”

Both San Diego Superior Court Judge Joan P. Weber, who presided over the first Ralphs trial, and U.S. District Judge Michael Anello, who presided over a retrial on the punitive damages as a superior court judge, appeared at Kay and Dalton’s trial but were unable to complete their testimony. Kay and Dalton tried to prevent the judges from testifying and although they did not succeed, progress was so slow that both will have to return for cross-examination.

Weber testified that Kay repeatedly violated her pretrial rulings, disrupted court and pestered witnesses. After the remand trial, Ralphs won a motion for another new trial when Anello found that the jury award was due “in large part” to Kay’s conduct.

“Plaintiff’s counsel was unrelenting,” wrote Anello “— from opening statements to closing arguments and numerous points in between — in unjustifiably suggesting, implying and directly stating that his clients were being deprived of their right to a fair trial in this case, and that evidence of defendant’s misconduct was being improperly suppressed or ‘hidden’ from the jury. The Court concludes that this conduct of plaintiffs’ counsel improperly inflamed the jury and resulted in a verdict framed by passion and prejudice.”

Anello, who reported Kay to the bar for discipline, said that during the punitive damages phase of the Ralphs litigation, Kay was argumentative, hostile and sarcastic.

Dalton and Kay filed four motions to disqualify Anello, three petitions with the court of appeal and an ex parte application to have another judge hear the disqualification motions. The bar charges that the motions were based on false accusations and were meant to harass the judge.

“They wanted a different judge,” according to the charges, “not because Judge Anello was biased or prejudiced against them, but because of the judge’s adverse evidentiary rulings at the hearings on the motions in limine.”

At the conclusion of both Ralphs trials, Kay and Dalton gave jurors a letter signed by Kay, informing them of the evidence the court refused to admit and asserting unproven conduct of opposing counsel. Their intent, the bar charges, was to make the jurors feel remorse for the amount of damages and bias the jurors against the opposing party and lawyers. The bar charged Kay and Dalton with harassing a discharged juror.

Kay also is charged with improperly splitting fees in perhaps the most well known of his cases, in which his client, Rena Weeks, won a $1.8 million judgment against Baker & McKenzie and attorney Martin Greenstein. Kay associated with two other lawyers and agreed to split his fee with them without getting his clients’ consent.

Jason Oliver, Kay’s attorney, said his client was simply fulfilling his duties to his clients. “Where does advocacy end and misconduct begin?” he asked.

Kay, who denies all the charges against him, characterized the State Bar Court as a Star Chamber where due process is denied, rules of procedure are ignored and rules of evidence don’t apply. Further, disciplined lawyers have no recourse, he said.

The case against him “is an attempt by the State Bar to undermine jury verdicts … This should send a chill up the spine of any plaintiffs’ attorney.”

Although he expects to be disbarred, Kay said, he is “fighting to get my reputation back. Ironically, I’m being charged for being competent. That’s why this is such a circus.”

The trial was to resume April 28.