Canada: Advocacy, Incivility And Professional Misconduct: Groia V The Law Society Of Upper Canada

Are the legal profession's rules regarding civility at odds with a lawyer's duty to zealously advocate on behalf of his or her client? Debate on this point has recently focused on the Law Society of Upper Canada's discipline of Toronto lawyer Joseph Groia for uncivil conduct during his defence of former Bre-X mining officer John Felderhof. The Ontario Divisional Court grappled with this question, and on February 2, 2015, upheld the Law Society's finding that Mr. Groia's conduct amounted to professional misconduct.

The Court explored the tension between lawyers' duties to their clients and their duties as officers of the court. Justice Nordheimer, writing for the three-judge panel, observed:

On this point, the famous speech by Lord Brougham in his defence of Queen Caroline that "An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client" does not correctly reflect the proper dimensions of the professional obligations of a lawyer.

This decision helps flesh out "the proper dimensions" of lawyers' professional obligations by confirming the authority of the Law Society to regulate conduct within the courtroom and providing guidance as to when harsh words may cross the line into incivility, and when incivility may cross the line into professional misconduct.


At issue was Mr. Groia's alleged incivility during his "hard-fought" defence of Mr. Felderhof against charges brought by the Ontario Securities Commission. During the trial, Mr. Groia was alleged to have repeatedly accused OSC prosecutors of deliberate prosecutorial misconduct, including with respect to document disclosure. Mr. Felderhof was acquitted of all charges in 2007.

After the trial, the Law Society commenced disciplinary proceedings against Mr. Groia. The particulars of the alleged misconduct included undermining "the integrity of the profession by communicating with prosecutors for the OSC in a manner that was abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer", failing to "act with courtesy and good faith through engaging in ill considered or uninformed criticism of the conduct of the prosecutors", and failing to "be courteous, to be civil and to act in good faith" toward the prosecutors.

The Tribunal Decisions

The Law Society Hearing Panel found Mr. Groia guilty of professional misconduct. Mr. Groia appealed to the Law Society Appeal Panel, which upheld the finding of misconduct, but reduced the suspension period from two months to one month and costs from $247,000 to $200,000.

Mr. Groia appealed to the Ontario Superior Court of Justice, Divisional Court.

The Appeal Decision

Due to the possible implications for trial lawyers, Mr. Groia's appeal attracted intervention by The Canadian Civil Liberties Association, The Criminal Lawyers' Association and The Advocates' Society. The Court made several key findings regarding the regulation of lawyers inside the courtroom.

Power to Regulate Courtroom Behaviour

The Court confirmed that the Law Society's jurisdiction to review and sanction the conduct of counsel extends into the courtroom. Such regulation was required due to an "increase in incivility", which necessitated consequences for unprofessional behaviour. The Court rejected Mr. Groia's arguments that this would interfere with the independence of the judiciary, reasoning that judges and regulators each have a separate and distinct responsibility to deal with incivility and could operate in parallel.

Test for Professional Misconduct

The Court was alive to arguments that regulating courtroom behaviour and disciplining lawyers for strong words could cast a "chill" on zealous advocacy. The Court agreed that trial is not a "tea party", that lawyers' conduct could not be expected to always be above reproach, and that all participants must have "a certain level of resilience to the impact of badly chosen words, uttered without the time and benefit of quiet reflection."

Where a conflict arose between enforcing civility and protecting the interests of the client, the Court favoured protecting the client:

Indeed, where interests clash, I would suggest that it is better that zealous advocacy be favoured over a desire for civility. Our justice system can tolerate uncomfortable and unpleasant exchanges in the courtroom much better than we can ever tolerate a wrongful result.

However, the Court found that all lawyers have a dual role, and must reconcile their duties to their clients with their duties to the profession, to the courts and to the public. These duties "serve as a necessary restraint on the lengths to which a lawyer might otherwise go in pursuit of the client's interests." Moreover, proper and forceful representation of a client does not require incivility.

The Court set out a two-stage test that would first distinguish between acceptable tough or passionate language and unacceptable incivility, then identify the type of uncivil behaviour that may rise to the level of misconduct:

1. The conduct must be uncivil, in that it is "rude, unnecessarily abrasive, sarcastic, demeaning, abusive" or "attacks the personal integrity of opponents, parties, witnesses or of the court" without a good-faith or objectively reasonably basis; and
2. The conduct must have the tendency to bring the administration of justice into disrepute, such as by calling into question the integrity of the court processes or participants.

Repeated instances of incivility would be more likely to constitute professional misconduct than isolated occurrences. While the Court held that there can be no "fixed definition" of incivility amounting to professional misconduct, examples include:

...repeated personal attacks on one's opponents or on the judge or adjudicator, without a good faith basis or without an objectively reasonable basis; improper efforts to forestall the ultimate completion of the matter at issue; actions designed to wrongly impede counsel from the presentation of their case; and efforts to needlessly drag the judge or adjudicator "into the fray' and thus imperil their required impartiality, either in fact or in appearance. Of special concern is any such conduct that could ultimately result in a decision that would amount to a miscarriage of justice.

The Court agreed with the Law Society Appeal Panel that Mr. Groia's uncivil behaviour rose to the level of professional misconduct because, although he may have held a good faith belief in the deliberate misconduct of the OSC prosecutors, there was no objectively reasonable basis for the accusations. His conduct had interfered with the progress of the trial, interfered with the ability of the prosecutors to present their case, and had resulted in unfairness to a witness. The Court found that the Appeal Panel correctly applied the test and reached a reasonable result, and there was no reason to interfere with the penalty.


This decision confirms the importance of civility to the practice of law. It articulates a test that attempts to discourage behaviour that may damage the administration of justice without unnecessarily compromising the trial lawyer's role as a fearless and loyal advocate. Subject to further appeal, this decision will likely influence regulatory bodies across Canada and may fuel further debate as to the appropriate balance between zealous advocacy and incivility.

Case Information
Groia v The Law Society of Upper Canada, 2015 ONSC 686
Docket: 162/14
Date of Decision: February 2, 2015

To view the original article please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.