When does zealous courtroom advocacy cross the line into incivility? And when does that incivility cross over to professional misconduct? The Law Society of Upper Canada has been grappling with these issues in a case that has held the attention of Ontario lawyers for nigh on a decade.
On Nov. 28, a law society appeal panel released its reasons for decision in Law Society of Upper Canada v. Groia. In a comprehensive decision, weighing in at a hefty 391 paragraphs over 85 pages, the panel concluded that, in his defence of John B. Felderhof, Groia had indeed crossed the line from ill-considered language blurted out in the “heat of the moment,” and had engaged in a concerted and sustained barrage of personal and unwarranted attacks on his opponents that were uncivil to the point of breaching the Rules of Professional Conduct.
However, the appeal panel reduced the penalty imposed on Groia from a two-month suspension to one, curiously citing the fact Groia had been subject to no further complaints since the original charges were brought as a factor weighing in favour of a reduced sentence.
This decision is the last stop after a decade of hearings before a range of decision-makers, and was made with the benefit of interventions by the Canadian Civil Liberties Association and The Advocates’ Society before the appeal panel. They stem from the infamous collapse of Bre-X Resources — at the time, the largest fraud on the market ever seen in Canada.
In 1999, Felderhof was charged by the Ontario Securities Commission with eight counts of violating the Securities Act. Groia was retained to defend Felderhof in the prosecution by the OSC. Ultimately, Felderhof was acquitted of those charges in 2007. However, in between, the case found its way to the Court of Appeal following an application by the prosecutor to disqualify the trial judge fundamentally as a result of his alleged failure to curb Groia’s uncivil conduct in the course of the trial.
In its decision denying the application for disqualification of the trial judge, the appeal court made the following observations regarding Groia’s conduct in the OSC hearing:
• “Mr. Groia, set the tone for what would be an increasingly acrimonious proceeding” by a letter in which he “went on to level the serious allegation that the prosecution “has been carried out to date with a ‘win at any costs’ mentality”;
• “The submissions by counsel, especially Mr. Groia, became increasingly strident”;
• “Counsel’s conduct has been a problem at this trial. The application judge found that Mr. Groia made uncivil attacks on the prosecutors”;
• “Mr. Groia was prone to rhetorical excess and sarcasm” which was improper
The Court of Appeal eloquently reminded the profession of the importance of civility not just to relations between colleagues at the bar, but for the administration of justice at large:
“It is important that everyone, including the courts, encourage civility both inside and outside the courtroom. Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client and is as important in the criminal and quasi-criminal context as in the civil context. Morden J.A. of this court expressed the matter this way in a 2001 address to the Call to the Bar: ‘Civility is not just a nice, desirable adornment to accompany the way lawyers conduct themselves, but, is a duty which is integral to the way lawyers do their work.’ Counsel are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients. As Kara Anne Nagorney said [citation omitted] ‘Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society. . . . Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice.’ Unfair and demeaning comments by counsel in the course of submissions to a court do not simply impact on the other counsel. Such conduct diminishes the public’s respect for the court and for the administration of criminal justice and thereby undermines the legitimacy of the results of the adjudication.”
Following the release of the appeal court’s decision, the LSUC brought professional misconduct proceedings against Groia, which were stayed pending the outcome of the OSC prosecution. Groia appealed the finding of the law society hearing panel, which found him guilty of professional misconduct and imposed a penalty of a two-month suspension and costs of nearly $250,000.
On appeal, the appeal panel confirmed in order for uncivil courtroom conduct to fall to the level of professional misconduct, it must be considered in context. “A contextual analysis ensures the challenges that confront courtroom advocates are fairly taken into account and do not create a chilling effect on zealous advocacy. . . . A few ill-chosen, sarcastic, or even nasty comments directed at one’s opponent will rarely constitute professional misconduct, particularly if they reflect a moment of ill-temper and an apology is made.”
In this case, however, the panel found Groia’s conduct went far beyond a few hotheaded words. They were an unfounded, relentless personal attack on the integrity of opposing counsel, including baseless allegations of prosecutorial misconduct. That went over the line.
There is an important lesson here for all courthouse gladiators. We are not in a battle to the death. While our clients deserve the best advocacy we are each capable of advancing, it is essential to keep in mind we are not just zealously advancing our client’s rights; we are also the face and the words of the justice system. We owe duties of candour and civility to our colleagues and to the court. The institution in which we uphold the rule of law requires we, too, conduct ourselves within the rules, including according due respect to our opposition and the court.