Sarcasm has its place: Fisher

Finding the ‘appropriate line’ of civility was once again the topic of discussion Friday at Osgoode Hall, as the Law Society of Upper Canada discipline hearing for Toronto securities lawyer Joe Groia continued.

Stanley Fisher“The public has a real interest in knowing that when you hire a lawyer, that that lawyer is going to do everything possible he or she can for the client short of somehow being guilty of professional misconduct,” stated Stanley Fisher, counsel at Heenan Blaikie LLP.

There is a “tension” between maintaining standards of civility and defending your client vigorously, “but there is a public interest to both sides,” he added.

Fisher, an expert in commercial litigation, told the three-member panel he has known Groia since the mid-1980s and was retained by him to argue the issue of former Bre-X vice chairman John Felderhof’s costs when that case was heard at the Ontario Court of Appeal.

The case moved to the appeal court after Ontario Superior Court justice Archie Campbell denied the Ontario Securities Commission’s application to have Justice Peter Hryn removed from the trial.

Echoing the sentiments of criminal defence lawyer Brian Greenspan from a day earlier, Fisher said the focus of Felderhof’s counsel was to resume the trial in front of Hryn rather than directly deal with all of the accusations the OSC leveled against Groia’s conduct from the first 70 days of the trial.

“We felt that Mr. Felderhof’s best interests were not served by getting into issues of civility, but rather to support the essence of justice Campbell’s decision . . . that the trial judge hadn’t lost jurisdiction and that the trial should resume in front of Justice Hryn,” said Fisher.

Fisher also discussed his experience sitting on various panels, and noted that advocates use a variety of approaches when defending the positions of their clients — including sarcasm.

“I have a great deal of experience witnessing counsel who come before me . . . and all kinds of different styles are used,” said Fisher. “There is no one style where you can say ‘that’s the style to use in front of a tribunal.’

“I can think of a number of instances where sarcasm was used positively to advance an argument,” he added.

In his decision, Campbell provided a sample of what he described as “the personally biting effect of Mr. Groia’s unrestrained repetition of his sarcastic attacks.”

Groia resumed his testimony Friday afternoon, going through daily transcripts of the trial and explaining the background of various statements made in court. As has been the theme of his counsel’s case, Groia raised concerns with the disclosure he received from the OSC prior to and during the case.

“I have never dealt with any prosecution that acted in the same manner as the OSC did in this case,” Groia said. “As you went through the disclosure you got more upset with how they were handling [it].”

According to Groia, his team obtained a number of crucial documents only after going through boxes at the OSC office themselves.

“These were not just a few obscure boxes nobody would care about,” said Groia. “These boxes had evidence that was critical for Mr. Felderhof.”

Today's testimony is it for now. Groia’s discipline hearing doesn't resume again until January 2012. If found guilty of professional misconduct, Groia could face sanctions ranging from a reprimand to losing his licence to practise law.

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