On Feb. 2, 2015, the Ontario Divisional Court rejected Joseph Groia’s appeal of professional misconduct findings that have been the subject of much discussion and debate in legal and business circles across Canada. This decision is the latest chapter in the campaign of the Law Society of Upper Canada directed at “reinforcing in the minds of all lawyers the need for civility in their dealings with each other, with the courts, and with the public."  

The recent focus on civility as a component of professional conduct (or misconduct) may be traced to the Advocates’ Society publication of the Principles of Civility in 2001, which addressed how lawyers should interact with opposing counsel.1 This was followed by the Honourable Coulter Osborne’s report on the Civil Justice Reform Project, and The Report on the Review of Large and Complex Case Procedures, by the Honourable Patrick LeSage and the Honourable Michael Code, which both detailed how incivility contributes to the complexity, length, and cost of proceedings in both civil and criminal litigation.

The decision in Groia is a watershed moment for the profession and (subject to further appellate comment) provides an important articulation of the standard at which incivility becomes professional misconduct.

Background   

The allegations of misconduct against Mr. Groia arose from the manner in which he defended a former officer and director of Bre-X Corporation, John Felderhof, against charges of insider trading and authorizing misleading news releases regarding Bre-X prior to that company’s spectacular collapse.

At the trial, Mr. Felderhof was acquitted of all charges. The misconduct alleged against Mr. Groia was described as “a relentless personal attack on the integrity and the bona fides of the prosecutors”. The attacks were personal in nature and were “aimed at the integrity of the prosecutors, including repeated assertions that the prosecutors had broken their ‘promises’ and could not be relied on to do what they represented to the court and were, in a word, untrustworthy”.

Following a hearing, a disciplinary panel of the Law Society found Mr. Groia guilty of professional misconduct. A  Law Society Appeal Panel upheld the finding of professional misconduct but reduced the penalty of suspension from two months to one month, and the order of costs payable by Mr. Groia from $246,960.53 to $200,000.

After a hearing, the Ontario Divisional Court upheld the Appeal Panel’s decision in every respect but gave different reasons for doing so, including a different articulation of the threshold at which incivility may become professional misconduct.

Standard of Review

Mr. Groia’s counsel argued that the Appeal Panel’s decision should be reviewed on a standard of correctness as the issue was one of fundamental importance to the law and to the public interest. The Court did not agree, finding that the Panel was engaged in exercising the authority central to the Law Society’s role as the regulator of the profession, and that the “reasonableness” standard applied to its disciplinary decisions.

Law Society’s Purview to Regulate Courtroom Behaviour

The Court concluded that the Law Society’s jurisdiction to investigate and regulate the conduct of counsel extends to behaviour within the courtroom, whether or not the behaviour is referred to the Law Society or commented on by the presiding judge.

Misconduct Arising from Incivility

The most important issue addressed by this decision is at what point “uncivil” courtroom conduct turns into professional misconduct.

Justice Nordheimer on behalf of the Court was alive to the reality and intensity of the trial process, as well as the pressures felt by counsel, particularly criminal defence counsel who represent persons accused of distasteful acts. The Bre-X proceedings were “a hard fought trial [with] a degree of excess on each side”, and one where neither side “has a monopoly over incivility or rhetorical excess”. Nevertheless, he stated that there are limits on a lawyer’s conduct in this context.

The Court held that these limits are exceedingly difficult to define. The decision does, however, provide some significant guidelines for the profession as to what types of incivility could constitute misconduct:

  1. The conduct must first be uncivil, not merely zealous or passionate. Examples of uncivil conduct is conduct that is “rude, unnecessarily abrasive, sarcastic, demeaning, abusive, or of any like quality”;
  2. The conduct attacks the personal integrity of opponents, parties, witnesses, or of the court, in the absence of an objectively reasonable good faith basis for making such attacks;
  3. The uncivil conduct is repeated, rather than a single occasion of incivility;

In addition to these guidelines, the Court held that the uncivil conduct must bring the administration of justice into disrepute in order to elevate it to the level of professional misconduct:

“For uncivil conduct to rise to the level that would properly engage the disciplinary process, it must be conduct that, in addition to being uncivil, will also bring the administration of justice into disrepute, or would have the tendency to do so. It is conduct that calls into question the integrity of the court process and of the players involved in it. It is conduct that risks bringing the administration of justice into disrepute because it is conduct that strikes at the very qualities of what the justice system represents...It is, therefore, ultimately necessary for a finding of professional misconduct for the uncivil conduct to have undermined, or to have had the realistic prospect of undermining, the proper administration of justice.”

Importantly, the Court noted that the conduct of counsel outside the courtroom may attract different considerations and be evaluated on a different standard. No further analysis or instruction was given on this point.

Conclusion

While acknowledging the inherent difficulty in defining the point at which incivility in court becomes professional misconduct, the Divisional Court’s decision in Groia provides important guidelines on when that threshold may be crossed. Subject to any further appellate review in this matter, which we understand at least one of the parties will be seeking, this decision will be used in Ontario and very likely elsewhere in Canada in future proceedings involving allegations of incivility as misconduct. As such it should be reviewed by counsel to ensure that zealous courtroom advocacy on behalf of a client does not amount to a violation of the duty as an officer of the court to uphold the administration of justice.