Lawyer Joseph Groia has vowed to take his fight with the Law Society of Upper Canada to the Supreme Court.
The case, which was recently dismissed by the Ontario Court of Appeal, has sparked concern from some in the legal community that the proceedings could affect the way trial lawyers defend their clients.
Groia says the proceedings have had a “chilling effect” on advocates.
“It’s very difficult to put a defence lawyer in a position where he or she has to be looking over their shoulder for fear that the judge is allowing things to unfold, but a regulator wants to come along and second-guess that,” Groia says.
The Court of Appeal recently dismissed Groia’s appeal of a law society decision to discipline the lawyer for conduct during a trial it determined was uncivil and unprofessional.
“The requirement of professionalism for lawyers, both inside and outside the courtroom, including zealous advocacy accompanied by courtesy, civility and good faith dealings, secures the nobility of the profession in which lawyers in this province are privileged to practise,” Justice Eleanore Cronk wrote in a whopping 110-page decision.
“The appeal panel concluded that this requirement was breached in this case.”
Others say the decision simply lays out the fact that there are limits to zealous advocacy.
Trevor Farrow, a law professor with Osgoode Hall Law School, says he does not believe the decision will affect lawyers’ ability to forcefully defend their clients, as it does not take away their right to zealously advocate.
“Nothing in this decision jeopardizes an advocate’s current ability to strongly and forcefully advocate on behalf of their clients,” Farrow says.
“I think what it does do is simply remind us all that the code of conduct includes provisions for robust advocacy, but they also include a lot more and, in my view, to date we have often privileged provisions and expectations of robust advocacy and for some reason either ignored or downplayed equally compelling obligations to others and to the court,” he added.
Over the years, Groia’s case has made its way from a law society hearing panel, through multiple rounds of appeals, up to the Divisional Court and beyond. It originated in complaints made about his conduct during his defence of former Bre-X Minerals geologist John Felderhof in an insider-trading trial. At the time, the Ontario Securities Commission had complained to the trial judge about Groia’s conduct but did not submit a complaint to the LSUC, according to the decision. Despite the fact that the trial judge had already ruled on the OSC’s complaints, the law society started its own proceedings against Groia and eventually determined he had breached the Rules of Professional Conduct.
He was originally given a two-month suspension and ordered to pay $247,000 in costs, which was later reduced to one month and $200,000 on appeal.
The lawyer now intends to seek leave to appeal the case to the country’s highest court.
“It’s just another step in a very long road,” Groia says.
In the 2-1 Court of Appeal decision, Justice James MacPherson also supported the law society and Justice David Brown was the lone judge to side with Groia.In his dissent, Brown argued that while civility is “not merely aspirational,” in the legal litigation system, Groia’s conduct was not professional misconduct. He added that the trial judge in the case had already ruled on the complaints the OSC filed in court and that the appeal panel “failed to take into account, in any meaningful way, how the trial judge ruled.”
“My proposition is a simple one,” he said in his dissent.
“Under our constitution it is the independent judiciary that controls what takes place in a courtroom.”
Groia says Brown’s decision helped him to come to the decision to seek leave.
“On the one hand, I’m disappointed that the two judges did not allow the appeal, but I’m also very grateful for Justice Brown’s dissent. It gives me a lot of encouragement,” he says.
In the proceedings, Groia cited Canada v. Federation of Law Societies of Canada, 2015, saying the law society should not impose duties on lawyers that interfere with their own ability to advocate for their client. The Supreme Court decision held that a lawyer’s duty to a client’s cause is “an enduring principle that is essential to the integrity of the administration of justice.”
Allan Rouben, a lawyer representing the Ontario Trial Lawyers Association, who were interveners and took no position in the case, says the issue is whether Groia breached the Rules of Professional Conduct and that the Federation decision does not give a lawyer the right to do so.
“The question still comes down to whether the conduct at issue breached the Rules of Professional Conduct,” Rouben says. “If it did, then there isn’t anything in the Federation of Law Societies [ruling] that allows for that.” If Groia is granted leave, Rouben says it is likely the Supreme Court will want to hear the case, as it raises novel issues about when a regulator should step in and discipline a lawyer for trial conduct.