Yet the judges’ observations about Groia’s behaviour did not slip by the law society, which opened a file on Groia in 2003 and began a full-fledged investigation into his perceived incivility after the Felderhof verdict came down four years later. Disciplinary cases concerning lawyers’ courtroom behaviour are rare, and usually only happen in the most extreme instances—as when one lawyer in British Columbia tried to perform a citizen’s arrest of a panel of judges for complicity in the genocide of aboriginal people.
Groia is being pursued because “incivility” is a hot-button issue among some members of the bar who believe overly aggressive lawyers tarnish the profession’s image. For others, however, defining “incivility” is akin to nailing Jell-O to a wall. “What you’re left with is this extremely broad and vague term that you can fill up with any content that appeals to you,” says Philip Slayton, a former Bay Street lawyer who wrote the 2007 book Lawyers Gone Bad. “My general view is that it is silly to discipline a lawyer for lack of civility. …We have an adversarial system. It requires and relies upon a hard knocking of points of view.” The famously combative Clayton Ruby, a long-serving member of the law society’s board of directors, is similarly dismissive about concerns of incivility in the courts, calling it “the preoccupation of small minds.” He believes the profession has far more pressing problems to address.
In the summer of 2009, Groia’s lawyer, Earl Cherniak, met with the law society to see if they could settle the matter without charges being laid against Groia. However, the law society’s demands were too onerous, claims Groia. “We tried to work something out that would’ve had me accept my share of the blame,” he explains, “and they said that’s not good enough—I have to accept all of the blame. I said I just can’t do that.” These negotiations were carried out in secret; what the law society was specifically seeking in penance from Groia remains unknown. Meanwhile, Groia feels the law society is overlooking Jay Naster’s actions during the Felderhof trial: Naster was forced to apologize to the court after he ignored a ruling by Hryn over a procedural matter, while the Superior Court felt that both sides had acted with incivility at times.
With no deal to be made, the law society laid charges. Last year, Groia filed a motion to have them thrown out on the grounds the law society had failed to cite even one incident of his alleged bad behaviour. The motion alleged the law society’s investigation was slipshod, accusing investigators of not having ordered and read the transcripts of the Felderhof trial, relying instead solely on the opinions of judges who heard no defence from Groia about his tactics. “I think the law society is on a bit of a witch hunt,” says Cherniak. “Joe’s taken his lumps big-time. This seems to be a case of piling-on.” The law society deferred his motion, and the hearings into Groia’s actions went ahead.
Just minutes into his testimony at the hearings in August, just how much of a toll the dispute has taken on Groia suddenly became clear. The seemingly routine matter of reviewing his career—he described his OSC stint “as dying and going to litigation heaven”—brought his jeopardy into sharp focus. His normally confident voice—the voice of the “petulant invective” he is accused of using in the Bre-X trial—suddenly failed him.
A long silence followed. Groia’s eyes reddened, pregnant with tears. He exhaled several times. Cherniak asked him if he was okay. “I think so,” he said quietly. Several more emotional pauses followed during the first hour of his testimony.
It wasn’t the only dramatic moment in the hearings, which fell behind schedule and are set to reconvene early next year. Felderhof, who still owes Groia approximately $2 million for his Bre-X defence, also testified, flown in by Groia from the Philippines, where the former geologist says he now runs a small convenience store and restaurant with his new wife.
Felderhof told the panel he hired Groia because he was looking for an “aggressive” lawyer. “I didn’t want a lawyer in court who would go, ‘My learned friend this, my learned friend that.’ I wanted a lawyer on my side,” he said. He added, however, that during the few times he was in the courtroom for his own trial, he found Groia’s bearing to be “cordial.”
The law society called no witnesses, relying on lawyer Tom Curry to read from the transcripts and from the Superior Court and Court of Appeal judgments that chastise Groia. Cherniak called Brian Greenspan to testify on Groia’s behalf, along with several other members of Felderhof’s legal team who insisted that Groia had not crossed the line in the trial.