January 8, 2013

Disciplining for Incivility in the Courtroom – Law Society of Upper Canada v. Groia

Administrative Law
Professional Regulation

Over the past year the Canadian legal profession has grappled with a number of controversial debates. In British Columbia, some of the most interesting issues we faced were whether the attorney general should be required to be a lawyer, the appropriateness of the government creating a new administrative tribunal in which litigants will generally be prohibited from being represented by legal counsel, and allowing non-lawyers to practice law in limited circumstances.  In terms of the regulation of the profession, however, perhaps the most interesting controversy was with respect to the degree to which law societies are enforcing standards of civility among their members.

Lawyers have a professional obligation to be civil and courteous and to act in good faith towards not only the court, but other counsel and parties in litigation as well. Failure to uphold this standard of conduct can result in disciplinary action against a lawyer by their regulatory body. In the 2012 case of Law Society of Upper Canada v. Joseph Peter Paul Groia, 2012 ONLSHP 94 (CanLII), Ontario’s Law Society found a senior Bay Street lawyer guilty of just that. Although their decision on penalty remains reserved, documents disclosed to date suggest that, irrespective of the penalty, counsel for the Law Society was seeking as much as $250,000 in costs against Mr. Groia. This case makes it very clear to lawyers across Canada that uncivil behaviour, even in the heat of a long, hard fought hearing, can have potentially disastrous consequences to their privilege to practice law.

Background to the proceeding

The disciplinary hearing for Mr. Groia came as the result of his vigorous defence of the former senior vice-president and vice-chair of the Bre-X Board of Directors, Mr. Felderhof, against charges of insider trading brought by the Ontario Securities Commission (“OSC”). The now defunct mining exploration company of Bre-X, as most of you will remember, was involved in an infamous scandal in 1997 when it was discovered that superlatively large gold deposits that Bre-X alleged to be exploring in Indonesia did not exist (para. 6). Mr. Groia was retained as part of Mr. Felderhof’s defense team for this prosecution with the ultimate result that Mr. Felderhof was found not guilty on all charges brought against him (para. 9).

Interestingly, no complaints were brought against Mr. Groia by either his opposing counsel or the judges overseeing the litigation (para. 20). Instead, Mr. Groia’s allegedly uncivil conduct during the trial came to light when the OSC made an application to judicially review the first phase of trial proceedings on the basis of the judge having lost jurisdiction for failing to control the proceedings (para. 10). This application for judicial review was dismissed by the Superior Court of Ontario, but in Campbell J.’s reasons for judgment he made extensive statements regarding Mr. Groia’s conduct during the trial (para. 12). This decision was appealed to the Ontario Court of Appeal and dismissed again, whereas Campbell J.’s findings regarding Mr. Groia’s conduct were affirmed (para. 13). The Law Society became aware of Mr. Groia’s conduct during the trial proceedings through media reports, and notified Mr. Groia that it was monitoring the matter while the trial was still ongoing (para. 15). Once the trial was complete, the Law Society issued a Notice of Application for disciplinary proceedings against Mr. Groia on the basis of his conduct having been uncivil during that trial (para. 16).

The uncivil conduct at issue

The primary allegation of uncivil conduct raised by the Law Society was with respect to Mr. Groia’s repeated allegations of prosecutorial misconduct against his opposing counsel in Mr. Felderhof’s trial (para. 135). The disciplinary panel noted that Mr. Groia had conceded during the trial that he had insufficient evidence to seek a stay of proceedings on the basis of prosecutorial misconduct, but he nevertheless “persisted in repeating [these allegations] ad nauseum”; this drew the panel to the conclusion that Mr. Groia’s real intentions were to “disrupt the orderly proceeding of the trial” and “creat[e] the conditions for the trial to collapse under its own weight” (Ibid.).

The panel also took issue with Mr. Groia’s repeated requests for a witness, Mr. Brown, to be called on a voir dire (a hearing to determine admissibility of evidence),without making any submissions on this point (paras.  155-157). The panel found that Mr. Groia made repeated calls to “get Mr. Brown over here” without submissions, and noted that in Campbell J.’s decision he referred to Mr. Groia’s conduct in this regard as “more resembl[ing] guerrilla theatre than advocacy in court” (para. 156).

Other concerns of the panel included Mr. Groia stating that the OSC was not living up to its promises with respect to the admissibility of documents (paras. 103-104 & 147), and that the OSC was employing a “conviction filter” when determining which documents it would allow to be admitted into evidence (paras. 133, 142 & 145).

The hearing panel conceded that Mr. Groia’s opposing counsel had been rebuked by the judge for his own use of provocative language from time to time during the trial, but found that the OSC’s counsel had been quick to recognize that he crossed the line and withdrew his remarks with an apology (para. 176). The hearing panel further found no merit to a defence based on the conduct of Mr. Groia’s opposing counsel in order to justify his own behaviour (para. 182).

Is this a new direction for the regulation of lawyer’s conduct?

The requirement for lawyers to be civil and courteous in their professional role is nothing new in Canada. However, the case of Mr. Groia does raise certain questions as to how Canada’s law societies will distinguish between vigorous advocacy as opposed to incivility when it comes to courtroom conduct.

Past disciplinary decisions against lawyers in Canada for incivility have tended to focus on personal attacks. For example, in the case of the Law Society of Alberta v. Pozniak, [2002] L.S.D.D. No. 55, a lawyer was disciplined for, inter alia, writing a letter to his opposing counsel referring to this other lawyer as being “clueless” (para. 10). Similarly, in Law Society of Upper Canada v. Kay, [2006] L.S.D.D. No. 39, a lawyer was disciplined for his personal attack on a client, a recent immigrant from India, who he accused of fraud and theft as a result of a billing dispute. He wrote her a letter threatening to contact the police if she didn’t pay his outstanding legal bill, further stating that he “would like to think that any Commonwealth country, including India, takes the same dim view of [her] criminal activity” (para. 54).

In Mr. Groia’s case, the disciplinary panel did find that his comments “constituted a pattern of improper attacks” on his opposing counsel’s integrity (para. 110). However, what distinguishes this case from most other disciplinary decisions on incivility is that the alleged attacks were accusations of prosecutorial misconduct, an issue that can and should be raised before a court, rather than personal attacks per se. The disciplinary panel’s concerns with Mr. Groia’s behaviour appears to stem from its repetitive nature and the fact that he never sought to have the court rule upon the allegations he consistently made against his opposing counsel of improper conduct and abuse of process. Nevertheless, defense lawyers such as Mr. Groia are not only subject to a duty of civility but must also act consistent with their duty to advocate for their clients vigorously and zealously, as was conceded by the panel (para. 49). It is clear that the Law Society’s panel felt Mr. Groia’s conduct crossed the line between vigorous advocacy and uncivil behaviour; however, it is more difficult to say whether this decision clarifies for the rest of us where that line is to be drawn in the future.

You can find our previous blog entry on a 2012 BC Law Society penalty decision involving incivility in the legal profession here (https://www.ngariss.com/blog/2012/02/02/the-price-of-incivility/).

Also, we recommend those who are interested in this topic check out the Legal Ethics Forum here (https://www.legalethicsforum.com/). Although this site is primarily focused on American lawyers and is academic in nature, it also addresses common themes that will be of interest to Canadian regulators as well.

Law Society of Upper Canada v. Joseph Peter Paul Groia, 2012 ONLSHP 94 (CanLII)

Lisa Fong and Benjamin Ralston