Canadians are world-renowned for our politeness. Whether apologizing after someone walks into us or forming a line for the bus, being nice is a part of who we are. This politeness extends to the courtroom where rules about civility for lawyers are treated as sacred. Being pleasant, however, is not always in the interests of justice and there are times when it’s necessary for lawyers to be less than civil.
Last week, the Supreme Court of Canada overturned a finding of misconduct for Toronto lawyer Joseph Groia and in doing so, it raised the issue of when civility can be counterproductive.
History of the case
The alleged misconduct related to the high-profile case of John Felderhof, a senior officer with Bre-X Minerals, who in 2004 was acquitted of charges related to insider trading and authorizing misleading news releases. Mr Groia was a lawyer for the defendant on that case in which disputes between the Crown and the defence reportedly became increasingly hostile and nearly ground the trial to a halt.
After the trial, The Law Society brought disciplinary proceedings against Mr Groia, alleging professional misconduct based on his uncivil behaviour. A hearing panel suspended his licence to practice law for two months and ordered him to pay $247,000 in costs.
Mr Groia appealed the finding with The Law Society Appeal Panel, Divisional Court and the Ontario Court of Appeal but each time he was unsuccessful and the finding was upheld. He did, however, manage to have the suspension lowered to one month and the costs reduced to $200,000.
Mr Groia took one last roll of the dice and the case was brought before the Supreme Court of Canada. This time the judges ruled 6-3 in his favour. The Appeal Panel’s finding of professional misconduct against Mr Groia was determined to have been “unreasonable” and the finding of misconduct was overturned. “Trials are not — nor are they meant to be — tea parties.” – Justice Moldaver
“Trials are not — nor are they meant to be — tea parties.” – Justice Moldaver
What this means for the legal system
This Supreme Court of Canada decision highlights the conflict between the sanctity of civility in the courtroom and criminal defence lawyers duty of zealous advocacy.
According to the Federation of Law Societies of Canada’s Model Code of Professional Conduct, resolute advocacy requires lawyers to “raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case”.
The Law Society, Divisional Court and Appeal Court clearly felt Mr Groia crossed a line in his conduct towards the prosecution during the Felderhof trial.
Mr Groia made an impassioned defence of his client based on what he thought was verifiable information. If he had decided to hold back on attacking the prosecution’s case out of politeness, would he really have been doing his job? It is the defence’s duty to pursue every avenue available to them to ensure their client does not go to jail, even if it involves going against civility conventions.
Freedom for defence lawyers is a must for our justice system
This case is confirmation of the fact that defence lawyers are within their rights to bring any applications possible – even applications that some may find uncomfortable – if it is for the benefit of defending their client. Some requests made in court may get a little personal. In the Felderhof case, Mr Groia made abuse of process allegations against the prosecution for failing to disclose elements of its case. Questioning the opposing lawyers’ integrity like this was seen as getting too personal and uncivil for The Law Society.
Although the allegations were shown to be false they were also shown to have been made by Mr Groia based on facts he believed to be true and he had acted in good faith.
Although The Law Society took exception to Mr Groia’s attack on the prosecution, the Supreme Court of Canada took his side. Justice Moldaver said: “It is not professional misconduct to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted.”
The Supreme Court of Canada recognized the right of defence lawyers to make uncivil applications if it is in the interests of their client and so long as it is based on verifiable facts.
An issue the Supreme Court of Canada was wary of was the potential chilling effect this case would have had on the principle of zealous advocacy. Instead, the Court sent a message that rules about civility cannot muzzle the right of lawyers to make a full defence. This is a good thing. Zealous advocacy does not mean making unsubstantiated claims but it does mean asking difficult questions. Without this ability, it would be like a boxer having one hand tied behind their back – it wouldn’t be a fair fight. In order to have a fair system, both sides need to be able to use any and all weaponry at their disposal.
Why you should want a rude lawyer
If you found yourself in legal trouble, what kind of lawyer would you want representing you? One who would not speak up about something unfair at a trial because they want to be respectable, or one who would not let a single thing slip. You want a lawyer who is going to fight tooth and nail for you.
Criminal defence lawyers, in particular, receive a lot of criticism and are often accused of “fighting dirty” to ensure their clients are found not guilty. These people often misinterpret the passion with which lawyers defend their clients for underhandedness. If notions of civility ever curtail the principle of zealous advocacy, it would be to the detriment of a fair and balanced justice system. As Justice Moldaver put it: “Trials are not — nor are they meant to be — tea parties.”