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The horrible crime of incivility

A disciplinary panel of the Law Society of Upper Canada begins a hearing today into the conduct of a senior Toronto litigation lawyer. The Law Society says the lawyer engaged in professional misconduct while defending a case prosecuted by the Ontario Securities Commission because he was allegedly rude and disruptive, failed to act in good faith or conduct himself in a courteous, respectful and civil manner. He was allegedly abusive and offensive to the OSC prosecutors, he didn't maintain a proper tone when communicating with the OSC lawyers, and he engaged in ill-considered or uninformed criticism of the prosecutors' conduct. The Law Society charges are, in essence, for incivility.

The discovery that core samples from a remote Indonesian location had been salted with gold dust triggered the collapse of the Canadian gold company Bre-X and, as a result, billions of dollars of investments evaporated. John Felderhof, the chief geologist, ultimately faced multiple charges brought against him by the OSC for insider trading involving $300-million and for being a party to misleading press releases. If convicted on all the charges, Mr. Felderhof faced many years in prison. He also faced the prospect of a fine or disgorgement of as much as $90-million.

Mr. Felderhof hired Joseph Groia. Mr. Groia clearly recognized what losing the case meant to Mr. Felderhof and was vigorous in his defence. His attack on the OSC and its prosecution was not always moderate or respectful. He was, at times, caustic and sharp in his criticism of the prosecution. He may have used misplaced hyperbole, mockery and ridicule, the very things anyone in Canada can use when criticizing the prime minister, the cabinet or MPs on matters of national importance. It's called free speech.

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In a courtroom, all trial proceedings are conducted before a judge who has real power to deal with those who show serious disrespect for the court, opponents and witnesses. The judge has the power to admonish counsel for their courtroom conduct. A judge can give counsel a clear warning not to repeat inappropriate conduct on pain of a contempt finding. If counsel repeats the offending conduct, the judge can find the lawyer to be in contempt of court. Contempt is punishable by a fine or even by a brief imprisonment. Finally, the judge can report counsel whose conduct is inconsistent with the proper administration of justice to the Law Society, the self-regulating body that has the power to discipline lawyers.

A trial is often tense. For example, the cross-examiner senses that a witness is about to admit something helpful to his client after relentless questioning. Sensing the same thing, the prosecutor objects and says, "The defence has already asked the question twice before. Enough!" Is the cross-examiner being disrespectful by "badgering" a witness who has already given the same testimony twice, or is the prosecutor unfairly protecting a dishonest witness who is about to crack under pressure? Which lawyer's conduct deserves criticism? Surely the person best able to evaluate the conduct of counsel engaged in the cut and thrust of a high stakes trial must be the trial judge.

Rightly or wrongly, Mr. Groia concluded early on in the trial that the prosecution was driven by a "win at all costs" mentality. Prosecutors, in other cases, have acted abusively in their treatment of witnesses, and have used "win at all costs" tactics. And when they do, appeal courts grant new trials. No overzealous prosecutors have ever had to defend themselves before the Law Society. It appears that only defence counsel are selected to be sacrificed on the altar of civility.

In this case, the trial judge did not criticize Mr. Groia at any point in the trial. He did not cite Mr. Groia for contempt or report him to the Law Society. In fact, no one complained to the Law Society, not even the prosecutors. Ultimately, the trial judge acquitted Mr. Felderhof.

The Law Society may have the legal jurisdiction to initiate disciplinary proceedings against a counsel for alleged uncivil conduct in the face of the court. But it should never exercise that jurisdiction where, as in this case, the trial judge was in the best position to censure the alleged misconduct but declined to do so. The Law Society does not enhance its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors. And such prosecutions will have a chilling effect on advocates.

Trial lawyers are the last bastion of liberty, the final barrier between an overreaching government and its citizens. For the client, it's very much a fight for his or her "life." Trial lawyers should not have to temper their obligation to vigorously defend a member of the public out of fear of appearing "uncivil" to a disciplinary committee that never attended the trial. Malicious prosecutions and other forms of prosecutorial abuse unfortunately do happen. If defence counsel is advancing such an argument and the trial judge does not say, "You are going too far," the Law Society should not presume to prosecute a lawyer for want of civility.

The courts that heard an unsuccessful application by the OSC to remove the trial judge noted that neither side in the Felderhof prosecution had a monopoly on incivility or rhetorical excess. Before the Law Society intervened, the trial of Mr. Felderhof brought to mind an old "lawyer" story: "You are a cheat!" shouted the attorney to his opponent. "And you are a liar!" bellowed the other. The judge interjected: "Now that both lawyers have been identified for the record, let's get on with the case."

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Edward Greenspan is a Toronto criminal lawyer, and L. David Roebuck a Toronto civil litigation lawyer.

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