In a victory for strong courtroom advocacy, the Supreme Court of Canada has ruled that punishing lawyers for “incivility” in defence of their clients should be done only in exceptional cases for fear of limiting their independence.
Only when lawyers act in bad faith or have no factual underpinning for their arguments should they be at risk of punishment for incivility, the court said in 6-3 decision on Friday.
The ruling came in the case of Joseph Groia, a veteran securities litigator in Toronto who, in 2004, successfully defended a man charged in one of Canada’s biggest stock-market frauds − only to be prosecuted by Ontario’s law society for professional misconduct over his repeated criticism of a prosecutor from the Ontario Securities Commission.
From the archives: Toronto lawyer battles sanction for ‘incivility’ at Bre-X trial
“Trials are not − nor are they meant to be − tea parties,” Justice Michael Moldaver, a former criminal lawyer and the court’s leading criminal-law expert, wrote for the majority in the ruling. “Criminal defence lawyers are the final frontier between the accused and the power of the state.” And Canada’s legal system depends on lawyers’ freedom to raise unpopular questions. “Fearless advocacy extends beyond ethical obligations into the realm of constitutional imperatives.”
The Supreme Court threw out Mr. Groia’s conviction, $200,000 fine and month-long suspension and dismissed all misconduct charges against him. Adding an exclamation point, it ordered the law society to pay him his costs from the beginning. (In an interview, Mr. Groia estimated those costs at $2-million, but said he expected to be able to collect only part of that.)
Mr. Groia’s decade-long battle brought the obligation of lawyers to be civil, as set out in their professional codes of conduct, into conflict with their requirement to advocate fearlessly.
It began with his defence of John Felderhof, a senior officer with Bre-X Minerals Ltd., who was charged with insider trading and authorizing misleading news releases. Mr. Felderhof was acquitted in 2004. Mr. Groia said he received a warning from the law society during the trial that it was keeping an eye on his defence tactics. Charged in 2009 with professional misconduct, he lost at the law society, which said he made repeated personal attacks on prosecutors without a reasonable basis for doing so and he lost again at Ontario’s Divisional Court and Court of Appeal.
Mr. Groia — who was elected by his fellow lawyers to the law society’s board of directors in 2015 — said the Supreme Court ruling set an important precedent. “It’s a very good day for clients who count on lawyers, and defence lawyers especially, to represent their interests in a courtroom.”
The acts arose initially over the prosecution’s failure, as Mr. Groia saw it, to fully disclose its case against Mr. Felderhof. He accused prosecutors of adopting a win-at-all-costs mentality and of lacking integrity. He was partly mistaken about the prosecutors’ legal duties, the Supreme Court said. But the prosecutors’ own comments had provided some factual foundation to Mr. Groia’s claims and even the law society acknowledged that he had acted in good faith, the court said. And when the judge presiding at the Felderhof trial eventually sought to curb Mr. Groia’s criticism of the prosecutor, Mr. Groia mostly complied, the court said.
Mr. Groia told The Globe and Mail that his firm had defended Mr. Felderhof when he could not afford to pay “because we believed in his innocence. For me to then be confronted with a 17-year battle with the law society for doing my job for John, I found very disheartening. It was incredibly stressful.”
In some ways, he said, the long fight changed him for the better. “I’m now a much more empathetic lawyer than I was before. And although I certainly don’t wish this on anybody, you learn a lot about being sensitive to clients’ needs when you’re the one who’s having the sleepless nights wondering what your future has in it.”
The law society said in a statement after the ruling that the Supreme Court had “reaffirmed the important role of the Law Society of Ontario in regulating in-court conduct and the importance of both civility and resolute advocacy.”
Trevor Farrow, a professor and associate dean at Osgoode Hall Law School, said the public and lawyers might view the ruling as a license for bad behaviour. “My big worry is that this decision will be seen as promoting a notion of zealous advocacy that I don’t think necessarily benefits the overall administration of justice.”
Sean Fine