Joe Groia has something to do with it. He’s the Toronto lawyer who successfully defended John Felderhof, of Bre-X Minerals Ltd. notoriety, on insider-trading charges. Groia was said to have a “win-at-all-costs” attitude at trial (he made the same complaint about the prosecution). He was accused of being strident and sarcastic, rude to the lawyer for the Ontario Securities Commission, and prone to “rhetorical excess” and “petulant invective.” At one point, in convoluted proceedings that surrounded the Felderhof trial, Justice Marc Rosenberg of the Ontario Court of Appeal adopted the language of justice Archie Campbell below who described Groia’s trial conduct as “appallingly, unrestrained, and on occasion unprofessional.”
Groia has become the poster boy for incivility and is now the subject of disciplinary proceedings before Ontario’s law society. Several of the Law Society of Upper Canada’s Rules of Professional Conduct bear on the civility issue. Rule 4.01(6), for example, requires a lawyer to be courteous and civil in the course of litigation; the commentary on the rule says, “a consistent pattern of rude, provocative, or disruptive conduct by the lawyer, even though unpunished as contempt, might well merit discipline.” Despite formal exhortations like this, there’s a growing feeling in the legal community that Groia has been treated unfairly, and that careful review of what actually happened shows his conduct was not egregious. Some even think that this whole civility thing has gone too far.
Is it that Canadians like decorum and restraint, and object when someone raises his voice? Complaining about a lawyer’s lack of civility smacks a little of whining to your mother because someone was mean to you in the schoolyard. But legal heavyweights say there is real substance to the problem. They say incivility contributes to the complexity, cost, and slowness of legal proceedings, and diminishes respect for the administration of justice. And the volume of complaints to law societies from the public about lack of professionalism by lawyers has accelerated dramatically in recent years.
In Ontario, complaints about incivility, counselling or behaving dishonourably, and misleading the court, have increased to 35 per cent of all complaints in 2008, from 11 per cent in 2004.
Ontario leads on the civility issue, although most other provincial law societies, and the Canadian Bar Association, genuflect to the concept. For example, John Hunter, a recent president of the B.C. law society, wrote in a message to his members, with just a slight touch of xenophobia, “Civility and mutual respect are aspects of professionalism that need emphasis in these days of the portrayal of aggressive and preening lawyers on American television.” Derry Millar, the LSUC treasurer, says, “The administration of justice depends upon the parties involved treating each other and the proceedings with respect.” In recent months, Millar has orchestrated something called the Civility Forum, a series of meetings throughout Ontario supposed to provide an opportunity for members of the legal profession to discuss the importance of civility.
Those who are skeptical of the civility movement quickly point out the duty of a lawyer to be a zealous advocate for his client. The commentary on Ontario’s Rule of Professional Conduct 4.01(1) about a lawyer’s responsibility as an advocate, says: “The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case. . . .” Many lawyers believe fiercely that no holds are barred when representing someone, particularly in criminal matters and family law.
Whenever I have suggested in these pages that sometimes a lawyer should back off, perhaps because of community standards that stand in the way of what he wants to do, I get lots of e-mails telling me that I just don’t understand the job of an advocate.
The commentary on Rule 4.01(1) goes on to say: “The lawyer must discharge this duty . . . in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy. . . .”
Balancing these two apparently countervailing demands — zealous advocacy on the one hand, fairness and courtesy on the other — is the nub of the civility dilemma.
A couple of years ago, Alice Woolley, a law professor at the University of Calgary, published an article in the Osgoode Hall Law Journal challenging the civility movement. First of all, argued Woolley, excessive emphasis on professional courtesy and collegiality inhibits the search for truth about another lawyer’s conduct. She wrote: “The law of defamation still exists to give protection to lawyers who are unfairly subject to criticism by their colleagues. The addition of law society discipline fosters protectionism unnecessarily and suppresses legitimate criticism.”
More importantly, Woolley argued the enforcement of good manners may obscure the real ethical principles at play. Often, for example, the focus should not be on whether a lawyer was rude, but on whether he was disloyal to the client or violated his duty to ensure the proper functioning of the legal system. Civility is not a proxy for these more fundamental considerations.
Woolley concluded: “What is required is strong and cogent debate about how lawyers can be ethical. . . . The civility movement should be abandoned in favour of this more difficult but ultimately more fruitful and important task.” That is how she resolves the civility dilemma: forget civility, and focus on what’s underneath.
I’m with professor Woolley. Fussing about politeness, as an end in itself, is silly. Sure, we should all be nice to each other, but it’s not the end of the world if sometimes we’re not, and sometimes we shouldn’t be. On occasion, hard things need to be said to people who don’t want to hear them. The picture of lawyers and judges getting together and chatting, delicately one presumes, about politeness in the law is faintly risible. Where is Monty Python when you need him? OK, I better stop now, before I start getting really sarcastic.
Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com.