Published in The Star

Peter Small November 20, 2012

Toronto courtroom rudeness: Make ‘uncivil’ lawyer pay $247,000, prosecutor says

A prominent Toronto lawyer found guilty of professional misconduct for uncivil courtroom behavior should be suspended for two to four months and ordered to pay $247,000 in costs, a prosecutor says.

In successfully defending Bre-X Minerals geologist John Felderhof against insider trading charges 12 years ago, Joe Groia engaged in deliberate and pervasive rude behavior, Law Society of Upper Canada prosecutor Tom Curry argued Tuesday.

“Zealous advocacy is not a licence to use deliberately provocative language or cast aspersions . . . on an opposing counsel,” Curry told a Law Society disciplinary panel.

Curry also asked that the nationally known Bay St. lawyer be subject to a reprimand.

In June, the disciplinary panel found Groia, 57, guilty of professional misconduct due to a “consistent pattern of rude and improper or disruptive conduct” at the trial.

Curry argued Tuesday other counsel have a right to try cases in an atmosphere of “measured deliberation, free from hostility, emotion or disruptive influences.”

The hearing panel should impose a significant penalty, so the public will know such behaviour is not condoned, Curry added.

During the trial in 2000 and 2001, Groia accused Ontario Securities Commission prosecutor Jay Naster of prosecutorial misconduct ad nauseum, but did not try to prove it, Curry said.

Groia’s conduct was later criticized by Ontario Superior Court Justice Archie Campbell, who said it “descended from legal argument to irony to sarcasm to petulant invective.”

But Campbell also said: “Neither side in this case has any monopoly over incivility or rhetorical excess.”

Defence lawyer Earl Cherniak told the disciplinary panel a suspension is unnecessary, given Groia has been “living with this cloud over his head for the last 11.5 years,” spending weeks away from his practice to mount his defence and incurring legal bills.

“Additional penalty by a reprimand would be superfluous,” Cherniak said.

Nor should he be forced to pay the “unprecedented costs” of $247,000, because the Law Society used this as a test case with broad implications, he said.

The Bre-X trial judge, provincial court Justice Peter Hryn, never chastised Groia, Cherniak added.

“The Law Society clearly regarded this prosecution as a test case in which to vindicate its position, in that its rules on civility apply equally to conduct in the courtroom, irrespective of whether it was criticized by the presiding judge, and regardless of the fact that the Law Society received no complaint about Mr. Groia’s conduct,” Cherniak said.

The costly hearing — involving 1,068 hours of lawyer, clerk and student time — could have been avoided, but went ahead because of Law Society actions, Cherniak added.

Any penalty should relate to the standards expected of lawyers in 2000 and 2001, not today, when the Law Society has a renewed emphasis on civility, Cherniak added.

Panel chair Thomas Conway, with members Susan McGrath and Baljit Sikand, reserved judgment.

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