Where is the line between incivility during a hearing and lawyers’ obligation to advocate strongly for their clients?
This is the main issue addressed by the Supreme Court of Canada in Groia v. Law Society of Upper Canada, rendered on June 1, 2018. The Court had to determine whether the vexatious conduct of a lawyer during a hearing before the Ontario Court of Justice justified a conviction on professional misconduct charges laid by the Law Society of the province. This issue entails balancing the various fundamental aspects of our justice system: the obligation to act with civility, on the one hand, and lawyers’ freedom of expression and the accused’s right to a full answer and defence, on the other.
The Ontario Securities Commission (OSC) accused John Felderhof, a former officer and director of mining company Bre-X Minerals Ltd., of insider trading and authorizing misleading news releases. The first part of the trial was marked by animosity between counsel for Felderhof, Joseph Groia, and counsel for the OSC. There was disagreement among counsel on the scope and format of disclosure sought by the defence. Mr. Groia’s legal opinion, which was based on his honest but mistaken understanding of the law of evidence and the OSC’s role, cast doubt on his colleague’s competence. His submissions went “from legal argument to irony to sarcasm to petulant invective”. Once the trial judge issued instructions, albeit late in the proceedings, Mr. Groia changed his behaviour. Following the trial, the Law Society brought disciplinary proceedings against Mr. Groia because of his disrespectful conduct during the trial. He was found guilty by the Hearing Panel, which suspended his licence to practice law and ordered him to pay nearly $247,000 in costs. The Law Society Appeal Panel, which developed an approach to determining when in-court incivility amounts to professional misconduct, also found him guilty, but reduced the sanction to a one-month suspension and $200,000 in costs. The Divisional Court upheld the Appeal Panel’s decision, and the Court of Appeal dismissed Mr. Groia’s appeal. Taking into account the various factors set out below, the majority of the Supreme Court of Canada accepted the method applied by the Appeal Panel but was of the view that the Panel had unreasonably found Mr. Groia guilty of professional misconduct. The Supreme Court therefore allowed the appeal and set aside the decision of the Appeal Panel with respect to the finding of professional misconduct.
The requisite approach
The approach developed by the Law Society Appeal Panel and upheld by the majority of the Supreme Court is multifactorial. What the lawyer said (1), the manner and frequency in which it was said (2), the presiding judge’s reaction (3) and maintaining the balance between the Law Society’s statutory mandate and the lawyer’s right to free expression (4) are all elements that must be considered to guide lawyers’ conduct and instruct disciplinary tribunals in future cases:
- Allegations of misconduct cross the line into professional misconduct if they are not made in good faith and reasonably based. The Court summarized its position on the issue as follows: “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”;
- As for the manner in which the allegations were made, it should be kept in mind that challenges to another lawyer’s integrity are always personal attacks. The Court noted that the strong language necessary in such situations should not be conflated with the type of communications that warrant a professional misconduct finding. Repetitive demeaning, sarcastic, or otherwise inappropriate attacks or remarks are more likely to warrant disciplinary action. This does not mean that a solitary bout of incivility is beyond reproach.
- The judge’s reaction to the lawyer’s conduct must also be considered in the analysis. The judge enjoys a privileged position as compared with the disciplinary committee because he or she personally observes the impugned conduct in the courtroom. Moreover, the committee must consider whether the lawyer changed his or her behaviour further to the judge’s intervention or continued to behave inappropriately;
- The Law Society’s disciplinary committee must maintain the balance between the Law Society’s statutory mandate and lawyers’ fundamental right to free expression.
This is not an exhaustive list, and other factors may be relevant.
What is the situation in Quebec? The eighth paragraph of the preamble of the Code of Professional Conduct of Lawyers sets out the principle of “respect for members of the profession as well as all other persons with whom the lawyer collaborates when engaging in his professional activities”. Lawyers must act respectfully towards their colleagues. The approach developed by the Law Society of Ontario (formerly the Law Society of Upper Canada) was upheld by the highest court in the land and could very well serve as inspiration for the Quebec Bar.
Standard of review
Another aspect addressed by the Court in this case is the standard of review, which implicitly concerns the role assigned to administrative decision-makers in relation to judges. In this case, the issue was the role of the disciplinary committee in relation to the judiciary. Eight of the nine judges of the Supreme Court found that the applicable standard was reasonableness (which entails greater deference to the initial judgment). Côté J., dissenting solely on the standard of review, favoured judicial independence and found that the applicable standard was correctness (pursuant to which a court may revisit the judgment in the initial decision-maker’s place).
The Supreme Court stated that, in the next few months, it will revisit Dunsmuir, which established the bases for the standards of review. This would certainly facilitate the clarification of certain remaining grey areas in regard to this central element of Canadian administrative law.