That loud whirring you heard earlier this week? It was the sound of Ontario’s 50,000 (or so) lawyers collectively printing the 169-page, 445-paragraph decision in Groia v The Law Society of Upper Canada. The case has been breathlessly reported on by newspapers, bloggers and the legal press, so the facts should be well known. Joseph Groia, a Bencher of the Law Society of Upper Canada and a leading barrister, was disciplined in 2012 for uncivil conduct during his defence of Bernard Felderhof on quasi-criminal charges of violating Ontario’s Securities Act. The trial, which lasted 160 days over seven years, and included a mid-trial appeal (on Groia’s uncivil conduct), was, in the words of Justice Cronk, “complex, protracted and exceptionally acrimonious”. Felderhof was acquitted. Subsequently, the Law Society commenced a discipline proceeding against Groia, alleging that his conduct during the trial was rude, improper and disruptive—in a word, he was uncivil.
The Law Society hearing panel found that Groia’s conduct was, indeed, uncivil. It suspended him for two months and ordered him to pay the Law Society’s legal fees. Groia appealed. The Appeal Panel upheld the finding of misconduct, but on different grounds. It reduced his suspension to one month and marginally reduced the Law Society’s costs award. Groia appealed to the Divisional Court, which upheld the Appeal Panel’s decision. Groia appealed again—in a 2-1 decision, the Court of Appeal again upheld the Appeal Panel’s decision. Groia has already announced his intention to apply for leave to appeal to the Supreme Court of Canada.
The core issue in dispute? If a lawyer is being uncivil in court, does the Law Society have any jurisdiction if the presiding judge hasn’t sanctioned the lawyer? According to the majority, yes. Though judges can control uncivil behaviour, they don’t have the “last or final word”—the Law Society has an unqualified right to discipline lawyers for misconduct, including in-court incivility. The test for incivility, which was formulated by the Appeal Panel and upheld by the Court of Appeal, is: “to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel unless they are both made in good faith and have a reasonable basis” and “to make submissions about opposing counsel’s improper conduct… in a ‘repetitive stream of invective’ that attacks that counsel’s professional integrity.” The Court of Appeal rejected Groia’s submission that a lawyer’s duty of zealous advocacy trumps his duty of courtesy and civility if those two duties conflict.
This was a 2-1 decision. Justice Brown dissented on almost every issue. He would apply a different test for in-court civility, one that focuses on what the lawyer did, what the judge did and how the lawyer responded and the effect of the lawyer’s conduct on the fairness of the trial. In his view, the Appeal Panel should have considered how the trial judge responded to Groia’s conduct. The trial judge, in Justice Brown’s words, took the “middle ground”: he neither strongly intervened or declined to intervene. Further, after the mid-trial appeal (where Groia was admonished for his conduct), the rest of the trial proceeded without incident: “They told Mr. Groia to cut it out and smarten up. He listened, and he did. Phase Two continued without incident.”
The Supreme Court may have the final word, but the lesson here? Litigation isn’t a trial by combat. The duty to zealously advance our client’s interests cannot compromise our duty to be civil to our “friends” and to the court. At the very least, we cannot attack opposing counsel’s integrity using invective and strong language to advance our client’s case, no matter how high the stakes.