The Boor of Baker & McKenzie

According to the Recorder,

A California State Bar Court judge has recommended San Francisco plaintiffs lawyer Philip Kay be suspended from practicing law for three years and serve five years’ probation for “outrageous conduct” and “insolent behavior” that disrupted three court trials and angered three San Diego judges.

“Respondent became so engrossed in litigation,” Judge Lucy Armendariz wrote in the 48-page ruling (pdf) Tuesday, “that he lost all perspectives of common courtesy and civility in the courtroom and respect for the court.”

That’s all well and good, and Mike McKee does a fine job with the story. But it reminded us of an older, much wilder story.

Kay is most famous for winning a David v. Goliath sexual-harassment suit against one of the world’s largest law firms. Actually, the case was an unbelievable slam dunk because the big-firm lawyer was such a miscreant.

That story, which puts Aaron Charney’s ordeal to shame, and Kay’s recent troubles after the jump.

Kay, who has the catchy URL “nosexualharassment.com,” was the plaintiff’s lawyer in a landmark discrimination suit, Weeks v. Baker & McKenzie. That was pretty much the first significant harassment verdict against a top firm.

Let’s go back to 1987, when partner Martin Greenstein embarked on quite a frolic in the Chicago office. Unfortunately, he was probably the only one having fun, considering the California appellate courtaffirmed $50,000 in compensatory damages against Greenstein and the firm, $225,000 in punitives against Greenstein, and $3.5 million in punitives against the firm (down from the jury’s $6.9 million).

According to the opinion, it all started when Greenstein harassed a secretary, who reported it to the director of administration, a Linda Johnson. The director reported it to the then-head of the Chicago office, Robert Cunningham (Nebraska BA ‘64, NYU JD ‘67, LLM ‘69), but nothing was ever really done about it. Johnson apparently convinced the secretary not to sue.

Then, a few months later, Johnson went back to Cunningham, saying she would quit if he approved a raise Greenstein was trying to get for one of his staff. She thought it was cover-up money and threatened to quit and testify if the raise was given.

The raise was granted and Johnson quit. Apparently emboldened by the wristslaps he had received to that point, Greenstein raised his sights a bit.

In early summer or late spring of 1988, Greenstein began to bother Melinda Faier, a young associate attorney. He sent her a vulgar note. He brushed up against her. Once, when she was wearing shorts and a tank top while working over the weekend, Greenstein leaned over her, telling her that he was turned on by what she was wearing. On one or two occasions he threw a pencil at her breasts. On another occasion, when Faier was working late in the library and had kicked off her shoes, Greenstein crawled underneath the table to tickle her feet.

Nothing was done about Faier’s allegations, either – although they questioned whether she was muttering about her poor treatment. After taking a leave to clerk for the “Federal Court of Appeals,” she wasn’t invited back to the firm. Despite all that, she wasn’t completely turned off to practicing law – she’s apparently still practicing in a family firm, and seems to be one sharp cookie (Harvard BA ‘82, Stanford JD ‘86, Illinois MD ‘01).

But none of that was even what got Greenstein in trouble, remember the case is Weeks v Baker & McKenzie. Now faced with three allegations of harassment (or two and a coverup), Cunningham and partner Michael Coleman (College St. Pierre (Humanities) ‘63; Toronto BA ‘67, Brussels DD ‘70, Tulane University JD ‘73) told Greenstein to get his act together. They breathed a sigh of relief as he moved out to Palo Alto in 1990 to grow his IP practice. They gave one partner a head’s up that Greenstein had a penchant for “juvenile behavior,” but again, nothing was done.

Notwithstanding [San Francisco partner Virginia] Gibson’s warning, Greenstein’s offensive conduct continued. In 1989, Greenstein met Donna Blow, a secretary in Baker & McKenzie’s San Francisco office. By July 1989 Blow became concerned about Greenstein’s conversations with her. Although Greenstein was married at the time, he would ask Blow out to dinner or over to his motel to join him in a hot tub. He commented on her appearance. He made her extremely uncomfortable. Blow attempted to evade Greenstein’s invitations, but he persisted. Finally, after Greenstein sent a proposition over a “current machine” (an early form of electronic mail), Blow sent back a message that she didn’t date married people, but even if she did, she would not be inclined to date a married man because she was gay. The telephone rang about a minute later. Greenstein was on the line, breathing heavily. He said that she shouldn’t send messages like that. He then asked her if she really was gay, and when she confirmed that she was, said, “Do you think you and one of your friends, one of your girlfriends could come down and we could have a three-way?” Blow hung up. She was very upset and found herself unable to work.

Classy! You know where this is going. Nothing happened, although the office manager noted that “none of the secretaries in Palo Alto will work with Marty at night anymore.”

Surely, it has to stop soon, right?

A 1989 incident involved Elyce Zahn, a secretary in the Palo Alto office. Zahn was in the office kitchen, unloading the dishwasher. Greenstein came up behind her, pulled the strap of her brassiere out of her sweater, and said, “Are you wearing a black bra?” Another attorney walked into the kitchen, and Greenstein turned away from Zahn. Zahn, telling herself she “didn’t need this crap,” walked out of Baker & McKenzie’s offices, threw her key to the office into a dumpster, and never went back.

Dear Lord, we still don’t know who Weeks is! Oh, and yes, nothing was done after Zahn quit.

In December 1989, Julie Haydock-Davis was working for Baker & McKenzie as a temporary receptionist. Greenstein started telling her off-color jokes, making her uncomfortable. By the third day of Haydock-Davis’s employment, Greenstein was discussing his hot tub, suggesting that she might like to join him in it. He started to rub her arm gently, stating he would show her how to do massage and one never knows where that might lead. Haydock-Davis was so uncomfortable that she called her father, who told her to “get the hell out of there now.” Haydock-Davis called the temporary agency, saying she would not be going back to Baker & McKenzie. She made a formal statement, explaining her reasons.

We’ve lost count, but this time, something was done!

The committee, however, decided that John McKenzie, another partner, should speak with Greenstein. No one informed McKenzie of the prior complaints against Greenstein. McKenzie did speak with Greenstein, who denied any knowledge of the incident. McKenzie cautioned Greenstein that he needed to be more sensitive to the way others might perceive his words or actions.

D’oh! Points for trying? No? We don’t think so either.

From January through April 1990, Vicki Gardner worked as a secretary in Greenstein’s department, working primarily for Greenstein’s brother Neil and for Myles Walker, Greenstein’s paralegal. Greenstein made her uncomfortable. He told her he liked to get together in a hot tub with three or four people. He looked her over, telling her that he liked the high collar blouse she was wearing. It reminded him of his first wife. He stated that he also really liked “low collared.” He asked her if she had a boyfriend. When she said she did not, he asked how long it had been since she had a boyfriend. Once when she was working late, he came up behind her, put his hand on her shoulder in what she perceived to be a suggestive way, and said, “Oh, are you putting in an all-nighter?” If he was nearby when she entered or exited the department, he stroked his hands across her shoulder as she went by. He would touch her, look her up and down, stand very close or back her into a wall. Gardner complained about Greenstein’s behavior to Walker and to Twila Carlsen, who also worked in the department.

You know where that went. More meetings, denials, and little else. Actually, they took Gardner’s advice to go speak to another secretary, who had equally repulsive experiences to recount:

He made “dumb blonde” jokes around her, suggesting that she was a dumb blonde. He asked her if she had a social disease. He put his face uncomfortably close to hers. On one occasion Carlsen was sitting at her desk when she felt something poke into her back. Greenstein was behind her. When she asked him what was in her back, he said, “Just happy to see you.”

Finally, we get to the plaintiff!

On August 8, the Thursday of her third week at the firm, Weeks had lunch with several persons, including Greenstein, at a local restaurant. As they left the restaurant, Greenstein gave her some M&M candies, which she put into the breast pocket of her blouse. A short time later, as they walked to Greenstein’s car, Greenstein pulled Weeks back, put his arm over her shoulder, put his hand in her breast pocket and dropped more candies into the pocket. He then put his knee in her lower back, pulled her shoulders back, and said, “Let’s see which breast is bigger.”

…

On August 14, Weeks ran into Greenstein as he was carrying a box. He put the box down, lunging towards her with his hands cupped. When she moved back, crossing her hands over her chest, he asked if she was afraid that he was going to grab her. The following day Weeks and several others, including Greenstein, had lunch at a local restaurant. Weeks’s food arrived first, but Greenstein grabbed it and wolfed it down. He later turned to Weeks, asking her, “What’s the wildest thing you have ever done?” In the meantime, Greenstein continued to be critical of Weeks’s work, yelling at her and calling her an imbecile. She was becoming petrified.

Meanwhile, the firm finally started realizing what a problem they had. In August ‘91, they recommended Greenstein go into counseling. He had two sessions in February ‘92 and the firm-approved counselor declared Greenstein cured. Voila! Meanwhile, Weeks started the EEOC process.

As that complaint proceeded through the administrative process then into court, the firm removed Greenstein from the partnership.

But not for sexual harassment!

Turns out he had been backdating documents, and his paralegal testified to that effect. That’s what finally made them oust him.

So back to the man who kicked open this whole can of worms. Kay won the case at trial and got the substantial punitive award. But he actually lost on the part closest to his heart, a multiplier on fees was overruled. He was awarded $563,125, which was increased 70% as a success fee, basically, but the kicker was shot down.

Baker & McKenzie seems to have gotten its act together on cultural issues, the firm touts itself for being:

• One of Working Mother/Flex-Time Lawyers LLC’s Best Law Firms for Women in the United States for two consecutive years.
• Among Asialaw’s Best Law Firms to Work For in China, Hong Kong, Indonesia, Malaysia and Singapore.
• lawcareers.net’s Best Trainer – Large City Law Firm in London for four years.
• Top Law Firm on Diversity in MultiCultural Law magazine.

Greenstein is apparently still practicing. His LinkedIn profile is here and his firm’s site is here (but completely useless).

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