Editorial: The fine balance in addressing incivility

There’s little denying that telling a fellow lawyer where he can “shove it” is uncivil.

But as Ernest Guiste, the lawyer who made that statement, says, whether those words constitute misconduct worthy of discipline is another question.

As Michael McKiernan tells us on page 1 this week, the Law Society of Upper Canada took on a trio of lawyers over alleged incivility during disciplinary matters last month.

They come as the LSUC took a number of actions last year aimed at addressing the issue, including former treasurer Derry Millar’s provincewide forums and new protocols for judges to complain about lawyers’ behaviour before them.

The idea, as Millar has repeatedly said, is to provide an escalating scale of measures to address incivility, starting with things like mentoring.

Guiste’s case dates to well before last year’s changes but it nevertheless serves as a good example of the fine balance involved in dealing with incivility.

Among his alleged misdeeds is an e-mail he wrote to a fellow counsel hinting that the opposing client was a cash cow. In another instance, he told a lawyer he was “speaking nonsense.”

Certainly, he was behaving aggressively, and some might argue his actions were unwise. But on their face, they don’t appear particularly egregious, especially considering the often heated atmosphere of litigation and a lawyer’s duty to defend clients to the fullest.

At the same time, it’s not unfathomable to view corporate clients as cash cows, as was the case in the matter referred to above, when they’re acting against individuals. Regardless of the merits of a case, companies generally do have more resources to litigate than the Average Joe.

The other side of the story, of course, is that judges have grown increasingly tired of lawyers’ bad behaviour in court. In some cases, counsel tie up court time with frivolous motions, tactics that have no merit, and aggressive actions towards the other side that in many cases only hurt their credibility with the bench. So the LSUC was right to make those concerns a priority worth addressing last year.

But the problem is finding the right balance. For the most part, it did so when it made remedial actions like mentoring the first response to incivility. In Guiste’s case, however, he says he didn’t have that option, likely because his matter arose out of incidents dating to before the new protocols.

We have yet to see what the law society will do with his case. The disciplinary panel may not find him guilty of misconduct or may give him a light punishment.

But before that happens, perhaps he should have the benefit of the new protocols that make formal discipline a last resort. In that way, the LSUC would be acting more in line with its current thinking and policies.

- Glenn Kauth

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