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.

Background

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.

Implications

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

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