Attorney Philip Kay suffers setback in federal appeals court

The U.S. Ninth Circuit Court of Appeals has ruled that the federal courts do not have jurisdiction over a lawsuit against the State Bar by high-profile San Francisco attorney Phillip Kay, whose recommended suspension is before the Supreme Court.

Kay, 57, along with his clients Lindsay Marcisz, Blair Pollastrini and Jessica Pollastrini, filed suit in federal court seeking an injunction against the State Bar from prosecuting him for charges ranging from moral turpitude to misleading the court. Kay also filed a similar suit in superior court that is pending. The federal district court refused to hear the case, citing lack of jurisdiction, and the appeals court affirmed that decision, adding a few comments on the merits of the case.

Although Kay and his three clients “present a litany of purported examples of the State Bar’s bias,” the three-member judicial panel wrote in its May 14 decision, “the record shows that each of these claims is exaggerated, taken out of context or otherwise without merit. Plaintiffs have also failed to show that the prosecution was brought ‘without a reasonable expectation of obtaining a valid conviction’ … or to discourage the exercise of protected rights … To the contrary, the State Bar Court Notice of Disciplinary Charges spans 129 pages and describes in great detail many alleged instances of professional misconduct.”

State Bar Court Judge Lucy Armendariz recommended a three-year suspension for Kay in December. She found that he committed 16 acts of professional misconduct, including misleading the court, improper contact with jurors, splitting fees with another lawyer without client consent and committing acts of moral turpitude. The charges stemmed primarily from his behavior as plaintiff’s lawyer in separate, successful harassment trials against Ralph’s Grocery Stores and Ultrastar Cinemas. Armendariz found that Kay failed to obey court orders or maintain respect to the courts, sought to mislead the jury and committed several acts of moral turpitude. His behavior wasted court time, delayed clients’ rights to receive their judgment awards and made the operation of the justice system “more burdensome,” the judge said.