It is literally a war of words. And it could be entering its final chapter this week.
The career of outspoken Bay Street securities lawyer Joe Groia hangs in the balance as a Law Society of Upper Canada disciplinary panel hears closing arguments that began Tuesday and continue Wednesday.
Mr. Groia stands accused of "professional misconduct" for the tone and language he used in court a dozen years ago while defending John Felderhof, the geologist at the centre of the Bre-X Minerals Ltd. scandal.
The closely watched case has electrified a long-running debate about the legal profession's "civility movement," which aims to stamp out bad behaviour among lawyers. Critics argue that allowing the law society to police courtroom rhetoric creates a chill for defence lawyers, who will shy from fierce advocacy to avoid potential disciplinary hearings.
Mr. Groia, a former Ontario Securities Commission director of enforcement, faces possible punishment that could range from a slap on the wrist to the revoking of his licence to practise law.
His conduct in the Bre-X trial was harshly criticized in two court judgments as being rude, petulant, and using "guerrilla theatre." His client, Mr. Felderhof, who was accused by the OSC of violations in the high-profile gold mining scandal, was acquitted in 2007.
On Tuesday, law society lawyer Tom Curry told the disciplinary panel that Mr. Groia's "persistent and unrelenting personal attacks" on the integrity of the prosecution violated the profession's rules and caused delays that stretched the trial's first phase to 70 days.
As well, Mr. Groia has shown little insight into the impact of his behaviour, said Mr. Curry, who accused Mr. Groia and his lawyer of engaging in "a lampooning of the idea of incivility."
Mr. Groia's high-profile lawyer, Earl Cherniak, also began his closing statement on Tuesday, denying that his client made personal attacks in the case. He told the panel that Mr. Groia did not refer to the prosecutors by name, but instead referred to the OSC, the Crown or the government. He also denied that Mr. Groia's conduct was responsible for delays in the Bre-X trial.
Mr. Cherniak will continue his arguments Wednesday. In his written submissions, he declared that the law society is trying to censor trial lawyers and that its pursuit of Mr. Groia has caused significant damage to the profession. "How can it possibly be in the public interest for lawyers to be gagged by their own law society?"
This argument has some support from prominent litigators such as Edward Greenspan, whose brother, Brian, testified on Mr. Groia's behalf.
"Trial lawyers are the last bastion of liberty, the final barrier between an overreaching government and its citizens and they should not have to temper their obligation to vigorously defend a member of the public out of fear of appearing uncivil to a discipline committee that never attended the trial," Mr. Greenspan said in an e-mail on Tuesday. "This time the law society has gone way too far."
The fight about what Mr. Groia said or did in the Bre-X trial could come down to what weight the disciplinary panel puts on the comments in the two judgments that chastise him.
One is from the Ontario Court of Appeal, the other is from Mr. Justice Archie Campbell of the Ontario Superior Court. Judge Campbell was asked to rule on whether the trial judge in the Bre-X case, Mr. Justice Peter Hryn, had failed to restrain Mr. Groia and lost control of the case. While criticizing Mr. Groia for his "rhetorical excess" and for being "appallingly unrestrained," both ruled the Bre-X trial could continue before Judge Hryn.
The law society says the decisions are proof that Mr. Groia broke his profession's rules; it holds that he should not even be allowed to challenge them. Mr. Cherniak argues those same rulings should be ignored, because it was Mr. Felderhof, not Mr. Groia, who was on trial.
Mr. Cherniak called the law society's position on the judgments confusing: "The word Kafkaesque has come to mind."
The question of whether civility can be defined objectively is also a central issue. Asked by disciplinary panel chairman Thomas Conway to flesh it out, Mr. Curry cited previous rulings, including one last month from the Supreme Court of Canada that upheld the suspension of a Quebec lawyer for incivility. But he said any definition will feature "some imprecision."
The definition in this case, Mr. Curry said, must go beyond the specific words Mr. Groia used – none of which were obscene – and consider the persistent nature of his attacks over the Bre-X trial's acrimonious and delay-plagued first phase.
"It's like an umpire in baseball calling balls and strikes. Those words are over our line," Mr. Curry said.
It is not clear what penalty Mr. Groia would face if the disciplinary panel sides with the prosecution. In previous civility cases – including one in which a lawyer tried to arrest a panel of judges of the B.C. Court of Appeal and another in which a lawyer made obscene and anti-Semitic remarks – lawyers have drawn reprimands.
WHAT GROIA SAID
Lawyer Joe Groia said he was merely providing a vigorous defence of his client, John Felderhof, the Bre-X geologist at the centre of the gold scandal that rocked Bay Street in the 1990s.
But the first 70 days of the Bre-X trial, which began in late 2000, were marked by raised voices, wrangling, delays, clashes and accusations as Mr. Groia repeatedly tangled with prosecutors from the Ontario Securities Commission.
The OSC asked Mr. Justice Archie Campbell to remove the judge in the Bre-X case, Mr. Justice Peter Hryn, for losing control of the courtroom. In October, 2002, Judge Campbell dismissed the move, but chastised Mr. Groia for his "sarcastic attacks." An Ontario Court of Appeal ruling in the case echoed his comments.
Among the remarks by Mr. Groia cited in Judge Campbell's ruling:
"Their promises aren't worth the transcript paper they are written on. … I mean, it's just – it's the most nonsensical proposal from a government prosecutor that one could imagine."
"Their conduct from the beginning of this case to the end of this case, in my submission, has been intended to ensure that they make Mr. Felderhof's life and his ability to defend himself as difficult as possible, and as miserable as possible."
"Somebody needs to tell us we got everything and it's just not right, in my submission, for the Securities Commission to say we're too lazy, we're too busy, we've got better things to do than go though the material to try and fix the mess that we have created."
"Only if this court is prepared to say that the word of the government is meaningless, that the representations of the government are meaningless, that the statements of the government on the record are meaningless, that you can't rely on anything the government says any more, is there any basis for my friend to make the submissions that he's making."
"I didn't realize that somehow there was now a case out there that said that somehow the defence's job was to save money for the Securities Commission so things would go smoothly – it would be so difficult – and sacrifice Mr. Felderhof's rights along the way."