Law societies will have to be more careful in “play selection,” says Joseph Groia, in the wake of the June 1 decision that quashed findings of professional misconduct against him for his actions in an insider trading trial more than 17 years ago.
“Nobody is denying civility is important. But civility had been elevated far beyond its boundary. I think the Supreme Court of Canada has recalibrated the inquiry and the approach that regulators will need to follow with respect to allegations of incivility,” adds the securities litigator, who heads Groia & Company in Toronto and was elected in 2015 as a bencher of the Law Society of Ontario.
The Supreme Court of Canada ruled 6-3 that an appeals panel of the LSO came to an “unreasonable” conclusion when it found that Groia engaged in professional misconduct during his defence in the first phase of the trial of former Bre-X geologist John Felderhof.
A one-month suspension and costs of $230,000 were set aside. As well, a still-to-be-determined amount of costs was awarded to Groia for the two disciplinary hearings as well as the Divisional Court and Court of Appeal hearings in the case.
The law society issued its notice of hearing against Groia in 2009, two years after Felderhof was acquitted of all charges. By this time, the actions of Groia had already been the subject of arguments at the Superior Court and Court of Appeal.
The Ontario Securities Commission called a halt to the fractious trial of Felderhof in April 2001 and filed an application to remove the trial judge.
One of the grounds was that Justice Peter Hryn had failed to reign in the “uncivil” behaviour of Groia.
The Ontario Superior Court and then the Court of Appeal were critical of Groia, but they dismissed the OSC application.
The trial resumed before Hryn with a new OSC prosecution team and no further complaints about Groia.
In his decision in 2002 that ruled against the OSC application, the late justice Archie Campbell found fault with Groia and, to a lesser extent, lead prosecutor Jay Naster.
The judge noted, however, that a trial “is not a tea party,” a phrase echoed by Justice Michael Moldaver, who wrote the majority decision for the Supreme Court.
What is still to be seen is whether the Groia case has provided more clarity on what is acceptable conduct for lawyers in court.
The original law society panel decision in June 2012 suggested that incivility undermines the rule of law.
“Legal disputes should be resolved rationally in an environment of calm and measured deliberation, free from hostility, emotion, and other irrational or disruptive influence,” wrote Ottawa lawyer Thomas Conway in a decision issued the same day he began his term as treasurer of the law society.
While it is important to be professional and respectful in court, the view that “an environment of calm trumps all else” misunderstands the role of a lawyer, says Groia.
“Civility means you have to be courteous. But your primary duty is to your client. I should be courteous, but I do not have to be friendly,” says Groia.
Bernard LeBlanc, a partner at Steinecke Maciura LeBlanc in Toronto, says the ruling gives “wide latitude” to lawyers in terms of conduct in court before it might merit a possible disciplinary hearing.
“This is how it should be, provided it is in good faith,” says LeBlanc, who advises and acts for regulators of a number of professions.
For lawyers who act improperly and frustrate civil litigation proceedings or discipline hearings, there are other remedies, such as an increased costs award, he notes.
Edward Sapiano, a Toronto-based criminal defence lawyer who has represented clients in dozens of jury trials and many murder prosecutions, says acting forcefully is not necessarily improper.
“You are supposed to catch more flies with honey. In court, that is not always the case. I always try to be civil. But in the face of dishonesty or aggression, you sometimes need to respond. Failing to do so is letting your opponent trample your client’s rights,” he says.
“He was there to do a job for his client and he won,” Sapiano says in reference to Groia.
The law society proceeding was a result of “sour grapes” in the “ivory towers of justice,” Sapiano says.
However, in a statement released after the ruling, the law society said the ruling “reaffirmed the important role of the Law Society of Ontario in regulating in-court conduct and the importance of both civility and resolute advocacy.”
“Although the Court allowed Mr. Groia’s appeal, the Court accepted the test for incivility and misconduct that was defined by the Law Society’s Appeal Panel,” said the news release. “On the facts of this case, however, the Court concluded that Mr. Groia’s in-court statements which gave rise to the proceeding, were made in good faith and were reasonable, based on a view of the law that turned out to be incorrect, and did not constitute professional misconduct.”
An unusual aspect of the Supreme Court majority decision, written by Moldaver, is that while the “contextual” test applied by the law society appeal panel was found to be reasonable, its findings on misconduct were deemed unreasonable.
The dissenting judgment concluded that, on the reasonableness standard, deference to the conclusions of the appeal panel was required. It was critical of the legal analysis employed by Moldaver.
“We are of the view that he fundamentally misstates the Appeal Panel’s approach to professional misconduct, and reweighs the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes this Court’s judgment for that of the legislature’s chosen decision maker,” wrote justices Andromache Karakatsanis, Clement Gascon and Malcolm Rowe.
“Further, we have serious concerns about the impacts that will follow from our colleague’s analysis and disposition in this appeal,” they wrote.
In a separate judgment that concurred with the majority that the law society penalties should be set aside, Justice Suzanne Côté stated that the reviewing standard should be correctness, not reasonableness, when it involves conduct before a judge in open court.
The other eight judges found that the standard of review is reasonableness.