From the Financial Post, November 21, 2012
By: Terence Corcoran
For the original article on the FP website, including links to related stories, click HERE
The civility movement is an attempt to interfere with free speech in court
For more than three years we have been watching with increasing incredulity the Law Society of Upper Canada’s persecution of Joe Groia, one of Canada’s most successful corporate lawyers. Did I say persecution? It is probably “uncivil” to call it that, although the story of Mr. Groia’s marathon encounter with the Law Society has all the hallmarks of — or, as Toronto Mayor Rob Ford might say, smacks of — systematic and oppressive mistreatment.
The latest news came Tuesday when the Law Society’s disciplinary panel heard from lawyers for the Law Society’s prosecution branch seeking to suspend Mr. Groia for two to four months and force him to pay $247,000 in Law Society costs. The Law Society seeks this punishment after it found Mr. Groia guilty of committing the crime of “incivility” during the Ontario Securities Commission’s famous fraud trial against John Felderhof, the geologist at Bre-X Minerals, the Indonesian gold play that crashed and burned $6-billion in shareholder value after it was discovered that there was no gold.
For young readers, you should know that the fraud took place in the last century. It was 1995 when Bre-X announced a major gold find in the jungles of Busang, and 1997 when the fraud was discovered. Canadian market regulators and prosecutors notoriously failed to track down perpetrators, instead settling on John Felderhof, a Bre-X geologist, whom they charged.
Mr. Felderhof hired Mr. Groia in 1997. The trial began in 2001 and dragged on for years before Mr. Groia emerged victorious in 2007 with his client cleared of all eight charges against him. It was a major black eye for the legal and regulatory establishment — an establishment that now seems to be taking after Mr. Groia to make up for the embarrassment. The charge against Mr. Groia is that, especially during the 2001 part of the trial, he behaved in an unprofessional manner by breaking the Law Society’s code that requires lawyers to behave in a civil manner. At minimum, surely there should be some equivalent of a statute of limitations against pursuing somebody 10 years after the events.
Whether Mr. Groia actually engaged in “incivility” is the first issue to be resolved. By all accounts, Mr. Groia ran an aggressive and belligerent defence of his client, in his handling of some examinations and in his comments about and to prosecuting attorneys. But what is incivility? Evidence during the Law Society’s penal hearings failed to turn up a hard definition.
The second issue is whether attempts to enforce civility have any merit. Edward Greenspan, in an op-ed in The Globe and Mail last year year, related what he called an old lawyer story. “You are a cheat!” shouted a lawyer at his opponent. “And you are a liar!” his opponent responded. Said the judge: “Now that both lawyers have been identified for the record, let’s get on with the case.”
If there were instances of excess at the Felderhof trial that should have been struck down, the trial judge had control of the courtroom. Apparently Justice Peter Hryn did not sanction Mr. Groia through the trial. And Justice Archie Campbell, who reviewed the Bre-X trial, concluded that both sides ran tough and belligerent operations. “Neither side in this case has any monopoly over incivility or rhetorical excess.”
What Mr. Groia appears to have run up against is the full force of the so-called “civility movement,” a decades-old campaign in legal circles and others to force certain behavioral norms on the profession. The movement, as Mr. Greenspan argued in his Globe op-ed, looks like an attempt to interfere with free speech in court and aggressive defence of clients. “Trial lawyers are the last bastion of liberty,” he wrote, “the final barrier between an overreaching government and its citizens.” These sentiments are echoed below in an excerpt from a commentary by University of Calgary law professor Alice Woolley, who has called for an end to the civility movement. “Focusing on civility … potentially undermines the effective representation of clients interests.”
At the Law Society’s panel hearing on Tuesday, news reports quote the Law Society’s lawyer, Tom Curry, laying down the new definition of civility. During trials, counsel on one side — in Mr. Felderhof’s case the government side — have a right to try cases in an atmosphere of “measured deliberation, free from hostility, emotion or disruptive influences.” That may be what people want in all walks of life and in all professions, including the news business. But it would not be free and not in anyone’s best interests. Free Joe Groia.