Advocacy, Incivility And Professional Misconduct: Groia V The Law Society Of Upper Canada

Are the legal profession's rules regarding civility at odds with a lawyer's duty to zealously advocate on behalf of his or her client? Debate on this point has recently focused on the Law Society of Upper Canada's discipline of Toronto lawyer Joseph Groia for uncivil conduct during his defence of former Bre-X mining officer John Felderhof. The Ontario Divisional Court grappled with this question, and on February 2, 2015, upheld the Law Society's finding that Mr. Groia's conduct amounted to professional misconduct.

The Court explored the tension between lawyers' duties to their clients and their duties as officers of the court. Justice Nordheimer, writing for the three-judge panel, observed:

On this point, the famous speech by Lord Brougham in his defence of Queen Caroline that "An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client" does not correctly reflect the proper dimensions of the professional obligations of a lawyer.

This decision helps flesh out "the proper dimensions" of lawyers' professional obligations by confirming the authority of the Law Society to regulate conduct within the courtroom and providing guidance as to when harsh words may cross the line into incivility, and when incivility may cross the line into professional misconduct.

Background

At issue was Mr. Groia's alleged incivility during his "hard-fought" defence of Mr. Felderhof against charges brought by the Ontario Securities Commission. During the trial, Mr. Groia was alleged to have repeatedly accused OSC prosecutors of deliberate prosecutorial misconduct, including with respect to document disclosure. Mr. Felderhof was acquitted of all charges in 2007.

After the trial, the Law Society commenced disciplinary proceedings against Mr. Groia. The particulars of the alleged misconduct included undermining "the integrity of the profession by communicating with prosecutors for the OSC in a manner that was abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer", failing to "act with courtesy and good faith through engaging in ill considered or uninformed criticism of the conduct of the prosecutors", and failing to "be courteous, to be civil and to act in good faith" toward the prosecutors.

The Tribunal Decisions

The Law Society Hearing Panel found Mr. Groia guilty of professional misconduct. Mr. Groia appealed to the Law Society Appeal Panel, which upheld the...