The Civility Standard for Unprofessional Conduct: Groia v LSUC
The latest chapter in the dispute between lawyer Joseph Groia and the Law Society of Upper Canada (“LSUC”) has come to a close. Earlier this month, the Ontario Superior Court of Justice dismissed Groia’s appeal from an LSUC decision that found he had engaged in unprofessional conduct during a more than decade-old trial. While Joseph Groia v The Law Society of Upper Canada, 2015 ONSC 686, upheld the penalties levied against Groia – he continues to face a one-month suspension from the bar and a $200,000 fine – the court also clarified the standard for determining when incivility crosses the line into professional misconduct. At the same time, it affirmed LSUC’s legitimate role in disciplining its members for their courtroom behaviour.
Groia’s misconduct stems from his role as defence counsel for the former Bre-X mining officer John Felderhof, who was charged in 1999 with fraud and insider trading. Groia proved to be an effective advocate. After a lengthy trial, Felderhof was acquitted of all charges (see R v Felderhof, 2007 ONCJ 345). However, that was only the beginning of Groia’s battle with the legal profession’s regulating body for his purportedly overzealous courtroom tactics.
In Groia v LSUC, the court declined to go into “excruciating detail” (para 19) regarding Groia’s alleged misconduct. (For an exhaustive account, see the results of LSUC’s appeal panel hearing in LSUC v Groia, 2013 ONLSAP 0041, beginning at para 14.) However, in a Notice of Application that preceded judicial review, the Crown impugned Groia for his “rude, improper or disruptive” courtroom conduct; for his failure to act in a “fair, courteous, respectful, and civil manner”; for his “abusive,” “offensive,” or otherwise unprofessional communications with the prosecution; and for advancing “ill considered or uninformed criticism of the conduct of the prosecutors.” These allegations were made pursuant to LSUC’s former Professional Conduct Handbook and its Rules of Professional Conduct (the latter of which is currently in effect).
In the appeal currently under consideration, the court considered two main issues, which I will address below: (i) whether LSUC improperly intruded on the independence of the judiciary by sanctioning a lawyer for his courtroom conduct; and (ii) whether LSUC imposed the “wrong test” for a finding of professional misconduct (para 21).
LSUC’s Legitimacy in Disciplining Members for Courtroom Conduct
Groia argued in his defence that LSUC, as the legal profession’s governing body, should sanction a lawyer’s courtroom conduct only in extremely limited circumstances—e.g., where the judge makes a complaint to LSUC about the lawyer’s behaviour, where the misconduct is “in conjunction with misconduct of the president judge,” where the lawyer is found in contempt of the court, or where there is a miscarriage of justice (para 26). The rationale underlying this restrictive approach is that acting otherwise would intrude on the independence of the judiciary and that – in the absence of a judicial complaint – LSUC’s subsequent finding of professional misconduct would represent “an implied criticism of the trial judge” (para 31).
Writing for the court, Justice Nordheimer rejected both contentions, reasoning that a judge’s “failure to complain” about a lawyer’s courtroom behaviour is not the same thing as “a finding of approval” (para 41). Furthermore, Justice Nordheimer noted that a judge’s most common remedy for improper conduct – a finding of contempt – is “too blunt an instrument to deal appropriately, and proportionately, with bad behaviour by lawyers” (para 38). This conclusion is consistent with the precedent established in Marchand v Public General Hospital Society of Chatham (2000), 51 OR (3d) 97, which determined that LSUC has jurisdiction in policing the conduct of counsel during trial (para 40).
Clarifying the Test for Professional Misconduct
Justice Nordheimer then turned to the question arguably at the heart of the appeal—namely, when does mere incivility cross the line into professional misconduct?
The court acknowledged that the standard articulated in the Rules of Professional Conduct does not imply a bright-line test:
The reality is that incivility amounting to professional conduct does not allow for a fixed definition. Uncivil words spoken by one lawyer in one case may not cross the line into professional misconduct whereas similar words spoken by another lawyer in a different case may. While the uncertainty that results from the inability to arrive at a comprehensive definition may be unfortunate, this is not the only area of law where uncertainty exists (para 68).
In articulating the appropriate standard to be applied, the court affirmed as a starting point the test adopted by LSUC, which states that “counsel must not impugn the motives or integrity of opposing counsel or make allegations of prosecutorial misconduct unless such allegations are made in good faith and have a reasonable basis” (para 69).
Justice Nordheimer outlined two principles to guide the application of the test. The first is aimed at distinguishing true incivility from behaviour arising from a lawyer’s legitimate role as zealous advocate. Conduct that crosses the line is that which is “rude, unnecessarily abrasive, sarcastic, demeaning, abusive or of any like quality … where there is an absence of a good faith basis for the attack, or the individual counsel has a good faith basis for the belief but that belief is not an objectively reasonable one” (para 74).
Additionally, Justice Nordheimer reasoned that for incivility to rise to the level of professional misconduct, it must risk bringing the administration of justice into disrepute. Here, Justice Nordheimer sought to draw a distinction with the type of discourse often observed in politics and the media: “It is the hallmark of professionalism that both sides recognize that reasonable people can have strong, but legitimate, disagreements without the need for either side to call into question the honour or integrity of their opponent” (para 75).
A “Chill” on Zealous Advocacy?
The strongest critiques of Groia’s prosecution have focused on whether the vigorous policing of courtroom behaviour represents a repudiation of the traditional paradigm of the lawyer as zealous advocate. To this end, the Canadian Civil Liberties Association, the Criminal Lawyers’ Association, and the Advocates’ Society all appeared before LSUC as intervenors on Groia’s behalf.
In the appeal currently under consideration, the court was careful to address such concerns:
The “zealous advocacy chill” is not a concern to be ignored or minimized. Indeed, where the interests clash, I would suggest that it is better that zealous advocacy be favoured over the desire for civility. Our justice system can tolerate uncomfortable and unpleasant exchanges in the courtroom much better than we can ever tolerate a wrongful result (para 71).
The significance of Groia v LSUC largely turns on the degree to which this statement is definitive. Subsequent disciplining of lawyers will determine the extent to which the legal profession truly is tolerant of “unpleasant exchanges” over a wrongful result.