From the Lawyers Weekly

By Kim Arnott

December 20 2013 issue

While upholding a finding of professional misconduct against Toronto lawyer Joseph Groia, a Law Society of Upper Canada appeal panel has halved the two-month practice suspension previously imposed on him for uncivil courtroom behaviour during an acrimonious trial more than a decade ago.

Citing errors by the disciplinary hearing panel that found Groia had breached the Rules of Professional Conduct, the appeal panel reduced the suspension of the securities lawyer to one month. It also set aside an order for him to pay $246,960.53 in costs, and opened the issue to submissions on whether the errors justify a lower bill.

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The decision is the latest chapter in a case that began with Groia’s successful defence of former Bre-X Minerals Ltd. executive John Felderhof on charges of insider trading in 1999.

While Groia’s conduct was not criticized by the trial judge in the case, it did result in highly critical comments by reviewing judges considering a related application in the case, including the conclusion by Ontario Court of Appeal Justice Marc Rosenberg that “Mr. Groia’s rhetoric was improper.”

The law society alleged professional misconduct based largely on those judicial comments, and in 2012 a hearing panel found him guilty.

In its review of that decision, the appeal panel agreed that Groia’s rhetoric “crossed the line” into incivility and professional misconduct with “repeated personal attacks on the integrity of the prosecutors” and “repeated allegations of deliberate prosecutorial wrongdoing that did not have a reasonable basis and were not otherwise justified by the context.”

An appeal of the ruling to the Ontario Divisional Court is being considered, on the grounds that the courtroom submissions were necessary to Felderhof’s defence, said Earl Cherniak, counsel for Groia.

The ruling is likely to reverberate across the country as lawyers and law societies consider issues of civility in the profession, said Brett Cotter, a law professor at the University of Saskatchewan and co-editor of the text Lawyers’ Ethics and Professional Regulation.

While acknowledging the importance of context in determining whether courtroom incivility amounts to professional misconduct, the decision doesn’t speak extensively to the challenge of balancing the need for zealous advocacy with civil conduct, he said.

“I would have preferred the hearing appeal committee to articulate a little bit more their appreciation of the profound obligations of advocacy that are reposed in defence counsel,” said Cotter. “I wouldn’t go so far myself to say they got it wrong, but this point is an awfully important point that the Rules of Professional Conduct also speaks to, and that’s not as richly captured in the judgment as I would have liked.”

Pointing to the Supreme Court of Canada’s thoughts on the complex issue in R. v. Neil [2002] S.C.J. No. 72, Cotter added, “It doesn’t license incivility, but it does license a very rich degree of adversarial advocacy.

I think in these contexts we have to expect lawyers to have a thick skin and the high stakes of the criminal justice adversarial system demands that of us.”

While the case has raised concerns about the potential chilling effect on courtroom arguments if discipline is imposed for incivility, the appeal panel made a very narrow finding with regard to Groia by focusing specifically on his attacks on the integrity of the prosecution without reasonable basis, noted Amy Salyzyn, a sessional professor at the University of Ottawa whose work has focused on legal ethics and professional regulation.

“However, I do think that litigators are going to want to take note of this case insofar as it suggests the law society won’t be shy in bringing its disciplinary machinery into play in relation to courtroom conduct, even where a trial judge hasn’t found contempt or complained to the law society,” she added.

One of the key legal findings made by the appeal panel was its ruling that the original hearing panel erred in deciding it would be an abuse of process to allow Groia to defend himself against the critical comments made about his behaviour by the reviewing judges.

“By doing so, the panel effectively foreclosed Mr. Groia’s defence on the basis of reasons given in a proceeding to which he was neither party nor witness, that he could not appeal, and that involved different legal issues,” noted the decision.

Disciplinary fairness demands that lawyers who haven’t had a prior opportunity to defend their conduct be allowed to do so, said Mark Alan, president of the Advocates’ Society, which intervened in the case on the applicability of the abuse of process doctrine.

“This is a further reinforcement of the obligation of counsel to conduct themselves in a civil manner, but on the other hand, that’s counterbalanced with an important protection for members that when there are disciplinary proceedings they will have a full opportunity to defend themselves,” he said.

The LSUC made no comment on the decision except to say that the decision must speak for itself, and highlights would be posted on its website shortly.