Brian Greenspan, one of the country’s most respected criminal defence lawyers, found himself in the witness chair on Thursday in a case that is being closely watched by his profession.
Mr. Greenspan was testifying at the Law Society of Upper Canada hearing for Joe Groia, the Bay Street lawyer accused of “incivility” during his successful defence of Bre-X geologist John Felderhof a decade ago.
In 2001, Mr. Greenspan was retained by Mr. Felderhof to assist Mr. Groia with two appeals related to Mr. Felderhof’s trial on charges of insider trading and releasing misleading information – charges of which he was eventually acquitted.
Mr. Greenspan told the panel that there was nothing inappropriate about an Oct. 4, 2000, letter sent by Mr. Groia to Ontario Securities Commission prosecutors while the two sides were engaged in a battle over whether the OSC had turned over all of its documents. In the letter, Mr. Groia accused the OSC of taking a “win-at-any-costs” approach.
“I would have written the October letter myself,” Mr. Greenspan told the three-member Law Society panel. “I have written such letters.”
The OSC went before another judge, and later the Court of Appeal, to try to have the trial judge, Mr. Justice Peter Hryn, thrown off the case for bias and for failing to restrain Mr. Groia’s attacks on the OSC. Mr. Greenspan was retained to deal with the allegations against Mr. Groia.
But an Ontario Superior Court Judge, and later the Court of Appeal, rejected the OSC’s arguments. But both rulings also sharply criticized Mr. Groia for using “sarcasm” and “invective” in court.
On Thursday, Mr. Greenspan told the panel that it was the defence team’s strategy not to fully respond to the allegations about Mr. Groia, and instead focus on what was best for their client: completing his trial before Judge Hyrn.
“I must say, it was difficult for Mr. Groia, although he accepted it,” Mr. Greenspan said.
The point is a key one in Mr. Groia’s case now before the Law Society. The Law Society has argued that the comments made about Mr. Groia in the judgments are in themselves enough to warrant discipline against him. But Mr. Groia’s lawyers argue the comments are merely asides and should not carry the weight of a judgment because Mr. Groia did not fully defend himself.
In his cross-examination, Law Society lawyer Tom Curry challenged Mr. Greenspan’s reading of the two court decisions, arguing Mr. Groia was given the chance to put forward a defence of his conduct.
“We chose not to. That's the whole point.” Mr. Greenspan interjected. “That's the tactic I chose, for better or worse. It was better for Mr. Felderhof and worse for Mr. Groia.”
Earlier in the day, Mr. Greenspan also told the panel about a controversial comment made by a lawyer for the OSC, Michael Code, who called Mr. Groia a “bald-faced liar” in court, and then offered less than a total retraction of the remark when chastised by the judge.
“I remember being surprised by the fact that Mr. Code did not present an unequivocal retraction,” Mr. Greenspan told the panel. “He tried to massage the language.”
Mr. Code was appointed as a judge of the Ontario Superior Court in 2009.
If found guilty of professional misconduct, Mr. Groia could face anything from a reprimand to the revocation of his licence to practice law.
In recent years, the Law Society has focused on promoting “civility” in the courtroom, but critics, including prominent defence lawyers, argue that policing lawyers’ language in court too closely could create a “chill” in the profession.