Out of order

By Justin Ling Web Only

Has the so-called civility movement already won?

Out of order

Illustration by Peter Ferguson

That’s the conclusion from more than one defence lawyer who’ve found themselves on the wrong end of a legal tribunal.

Attention has focused of late onto Joe Groia, the corporate lawyer on one side of a four-year legal battle with the Law Society of Upper Canada, and the coiner of the term ‘civility movement.’ The self-regulating body says he crossed the line from vigorous defence to incivility.

But he’s not alone. The LSUC has made it their mission to root out incivility in the profession. In most cases, that means reprimanding lawyers whose salty tongues have gotten them in trouble with judges and other lawyers. But in a handful of cases, lawyers have questioned whether the law society’s intervention might be counter-productive — discouraging lawyers’ vigorous defence of their clients for the sake of politeness.

 

Joe Groia

The Toronto securities lawyer found himself in the centre of the debate on civility after joining the defence team of John Felderhof, an executive implicated in the massive Bre-X gold fraud that was uncovered in the late 1990s.

In the fallout of the scandal, the Ontario Securities Commission (OSC) laid charges against the company’s vice-chairman and geologist, Felderhof. After a protracted legal saga, Felderhof was found not guilty of insider trading and spreading false information.

The OSC was alleging that Felderhof should have uncovered the fraud. Groia argued that he was duped. The court, after eight years of legal battles, sided with Groia.

But the issue stems from a particularly acrimonious leg of the case, culminating in a 2001 effort by the OSC to have the judge removed hearing it. The OSC alleged, among other things, that the judge had failed to “restrain uncivil conduct by defence counsel thus producing an unfair trial and creating a reasonable apprehension of bias in the judge,” as the LSUC would later phrase it.

The application to have the judge removed was denied twice, but both the judge conducting the judicial review and the appeal judge later remarked on Groia's inappropriate conduct. The LSUC noticed media reports of that conduct and, after the trial concluded in 2007, the society moved forward on disciplinary hearings, without ever having received a complaint.

In proceedings against Groia, the LSUC argued that he breached the Rules of Professional Conduct, which requires that “a lawyer shall be courteous, civil, and act in good faith.” The LSUC argued that Groia’s actions did not meet that standard, and he disagreed.

Groia tried to have the entire notice of application quashed, arguing that the process was inherently unfair and ran contrary to his duty as a lawyer, but also that it amount to an “abuse of process arising from the vagueness of the particulars of misconduct.”

The LSUC doesn’t exactly hone in on any individual action from Groia, but moreso holds him responsible for his general conduct, balancing their allegations on the admonishments from the two judges that found Groia overly aggressive against the OSC prosecutors.

An example of the LSUC’s concern with Groia’s conduct involves his use of the word “government” to describe the OSC, which is technically a Crown corporation.

“In our view, Mr. Groia’s repeated use of the term ‘Government’ to describe the OSC’s lawyers, coupled with the obvious sarcasm with which he delivered his submissions, fell below the standard of professional conduct required of a lawyer before the Court and was inconsistent with the proper tone of professional communication from a lawyer,” the LSUC wrote.

Groia lost that decision before the tribunal, and its eventual appeal. He ultimately faced a month-long suspension and was ordered to pay a $200,000 legal bill.

 

Raj Napal

The Brampton lawyer, of English origin, wound up on one of the country’s most-watched trials in 2007.

He was called upon by the court to, initially, help with the defence of ex-cop Richard Wills and, later, become his lead defence counsel. Wills was charged with, and eventually found guilty of, the first degree murder of his partner, who was found in a plastic garbage container in the walls of Wills’ home.

After Legal Aid refused to cover Wills, a series of lawyers were shuffled in to defend the accused murderer, at a generous hourly rate. Lawyer after lawyer was fired, or quit, after dealing with the incredibly difficult Wills, who was prone to outbursts in the courtroom.

Wills “had fired every counsel who was not prepared to do his bidding,” the LSUC notes in its eventual ruling against Napal.

“The trial record is replete with examples of Napal following his client's instructions even when they were inappropriate and against his better judgment,” the decision goes on. “Napal asked questions of witnesses at his client's behest when he knew the questions were irrelevant or otherwise inappropriate.”

That practice, which eventually delayed the proceedings and frustrated the trial judge, was eventually what led the LSUC to start proceedings against Napal. Part of the issue, the law society contended, is that Napal was, on the orders of his client, being uncivil to the court.

According to the LSUC, Napal “was in over his head and under siege by an abusive and controlling client,” and it noted that “Napal admitted professional misconduct.” He was ordered to pay $7,500 in costs, and was suspended for two months.

The LSUC notes that the total cost to their membership would be over $110,000, but — seemingly in part because Napal admitted wrongdoing — they requested only the $7,500 figure.

By comparison, the LSUC notes that Groia’s case cost them $246,960.53 — he was ordered to pay that entire amount. (An appeal found that the costs were initially miscalculated, and reduced Groia’s fees to $200,000.)

Napal spoke with National and, although he didn’t want to rehash the specifics of his case, says there is a definite trend towards ‘civility’ that should worry defence attorneys.

He says that being called uncivil by the tribunal is a stretch. “I didn’t behave badly in court, like swearing at crown counsel and stuff like that. What I did was protect my client, and it was seen as going too far.”

Napal says that counsel has to be “very careful in how they conduct their defence,” especially of late. There’s an obvious change in the atmosphere since the Groia decision, he says, and it’s being felt. “The game rules have changed a little bit,” he says.

“There’s now a line that has been drawn: between what the law society sees as improper and as disrespectful to the court and, the other side of the line, that defence counsel has to put their client’s interests forward.”

He says high-profile cases that receive significant media attention, like his and Groia’s, are the prime targets for this sort of scrutiny.

 

Brian Ludmer

The Toronto family lawyer found himself suspended for two months and forced to pay $25,000 in legal fees for, as one former judge put it, “wearing the separate hat of an advocate for a cause.”

Ludmer admitted to misconduct in the course of an LSUC investigation into one case where, according to the law society, he “communicated with various individuals including his client’s former wife, her counsel and [a court-appointed assessor], in a manner that was abusive, offensive or otherwise inconsistent with the proper tone of the professional communication from a lawyer.”

Ludmer had taken up the cause of “parental alienation” — the belief that, in some cases, one party in a divorce (usually the wife) can poison their child’s opinion about their other parent. The LSUC, through the testimony of a witness they appointed to counsel Ludmer, that “the apparent parental alienation of his own children had a strong impact upon Mr. Ludmer’s professional behaviour, which has led to these allegations by the Law Society.”

In pages of emails entered into the record as a part of the hearing, Ludmer repeatedly communicates with various individuals involved with the case, both directly and peripherally, in aggressive tones.

He emails his opposing counsel things like: “that you persist in this distracting and silly practice is astounding to both of us,” and “why don’t you guys stop playing games and just deal with the issues?” Ludmer commonly refers to claims from other parties in the issue as “fraud” and calls the mother’s new husband a “usurper” and suggest she is acting as though she has a personality disorder.

Ludmer told the tribunal that his choice of words may have been poor, but that he “took the position that the dynamics of the particular case and his efforts to advocate for his client required him to take the steps and make the comments he did during the litigation.”

The LSUC lists the costs of the process at nearly $140,000. Ludmer, like Napal, accepted some of the charges against him, but requested that the penalty be lessened. It was, to $25,000.

 

Defining and defending civility

There are dozens of cases dealt with by the LSUC tribunal that very obviously required attention — namely, cases where attorneys would shout obscenities at clients and other attorneys both in and outside the courtroom.

However, the handful of cases where the tribunal found issue with the lawyer’s attitude or tone, not exactly their words, raise the question of where the tribunal’s definition of incivility begins and ends.

“The difficulty with defining civility in these terms is that it is subjective; what is rude or unsociable is in the eye of the beholder,” writes Groia in a 2014 paper entitled Shades of Mediocrity, the Perils of Civility. “The recent civility cases decided by various law societies disclose a myriad of factual circumstances which are difficult to categorize in any meaningful way. Can we seriously contend that the profession has not lost its way if saying “f*** you” to an offensive peace officer in a heated discussion outside of a courtroom merits a professional conduct hearing and punishment?”

David Bertschi, a partner at Bertschi Orth Solicitors and Barristers, and Vice President of Canadian Defence Lawyers association, says the principles of civility are longstanding and pretty obvious.

“I think you’ll find that it’s always been part and parcel, from our perspective, to be courteous and respectful, while still being effective,” Bertschi told National.

While Napal says he’s noticed an increase in concern of civility, thanks in no small part to the Groia decision, Bertschi says he’s seen no such trend.

“The regulation of the legal profession has been ongoing for many, many years. I’ve not seen an uptake in that sort of complaint in recent years,” he says, adding that, if there is an increase in actual cases of incivility, it may be due to a decrease in mentorship in the profession.

The LSUC specifically noted, in a paper published after they pursued disciplinary action against Groia, that there needs to be a power to arbitrate, outside the realm of criminal contempt, the behaviour of lawyers.

Groia takes a different tract.

“Every trial has its own dynamic, and a lawyer who goes outside the boundaries of what a judge will accept does so at her peril. At the same time, disciplining a lawyer for conduct that is accepted or encouraged, or at the very least not criticized by a judge, is extremely troubling.” he writes. 

Groia concludes: “unfortunately, the competing interests of zealous advocacy and civility force lawyers to sacrifice one ideal at the expense of the other.”

For Lorne Sossin, dean of Osgoode Hall Law School. "A civility rule needs to exist for extreme cases but can do real damage if used outside extreme cases, in inconsistent ways or in ways that are not alive to the realities of litigation and the realities of a culturally and socially diverse society," he says. He adds that the Groia cases poses a conundrum, given that it's a case of a well-heeled corporate lawyer, up against government prosecutors. "I might feel differently where incivility is the method by which a more sophisticated party takes advantage of a less sophisticated party."

Justin Ling is a regular contributor based in Ottawa.

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Comments
Geoff Elland 1/28/2015 2:36:39 PM

Dear Justin,
Interesting article but I have a niggling editorial point. It concerns the one-line, fourth paragraph from the end which reads: "Groia takes a different tract." I'm sure you mean "tack" not tract. When a boat sails into the wind it zigzags, or "tacks into the wind". Hence the expression "someone takes a different tack". Small point but now you know. Regards and thanks for the informative article. Geoff



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