Bay Street lawyer Joe Groia is appealing the Law Society of Upper Canada decision last month that found he violated the legal profession's rules on civility while defending the geologist at the centre of the Bre-X Minerals gold scandal a dozen years ago.
In a filing with the Law Society's appeal panel on Monday, Mr. Groia's lawyer Earl Cherniak slams the June 28 law society disciplinary ruling as "unreasonable" and "absurd" and criticizes the hearing that preceded it as "flawed and unfair."
Mr. Groia, a well-known securities lawyer and former director of enforcement for the Ontario Securities Commission, was accused of incivility in the courtroom during the lengthy trial of Bre-X geologist John Felderhof, which began in 2000.
Mr. Felderhof was acquitted in 2007, but Mr. Groia faced a law society investigation for his conduct during the trial, and a disciplinary hearing that eventually began last summer.
While the trial judge in the Bre-X case at the time never censured Mr. Groia, two rulings from other courts on the case chastised him for repeatedly attacking the prosecution with "sarcasm" and "petulant invective" during the trial.
In the appeal filed Monday, Mr. Cherniak says the law society's ruling could send a chill to other defence lawyers, who might temper their advocacy on behalf of controversial clients for fear of facing discipline years later. And the ruling against Mr. Groia also offers no working definition of civility, he argues.
"This failure will damage the profession's ability and willingness to advocate on behalf of clients," Mr. Groia's appeal says. "Lawyers will now face the prospect of ruinous civility prosecutions, like the one in this case, with no benchmark against which to assess their conduct."
Mr. Groia's appeal also accuses the three-member law society panel, chaired by newly-elected treasurer Thomas Conway, of ignoring the defence's witnesses and evidence.
"The Panel appears to have primarily cut and pasted their Reasons from the factum of the Law Society and [two court decisions critical of Mr. Groia]," the appeal says. " ... The Reasons could have been written before the hearing began."
Mr. Groia's appeal says the panel made a "fatal error in law" by relying on the criticism of Mr. Groia found in two court rulings about the Bre-X case. The panel decided that Mr. Groia was not entitled to challenge those comments.
Those rulings came after lawyers for the Ontario Securities Commission tried to get the Bre-X trial judge removed in the middle of the trial for failing to restrain Mr. Groia's courtroom behaviour. The OSC move failed, as did an appeal, but both rulings contained scathing comments about Mr. Groia.
Mr. Groia argues the comments about him are not fully fledged judicial findings, since it was Mr. Felderhof and not he who was on trial. Mr. Groia argues that he chose not to defend his own courtroom conduct fully at the time in order to focus on what was best for his client.
The case has sparked a debate in the profession about whether the law society should aggressively police courtroom behaviour by lawyers.
Edward Greenspan, whose brother, Brian Greenspan, worked with Mr. Groia on the Bre-X case and testified at the hearing, is among those who have said the Law Society is wrong to prosecute the case. After the decision last month, he said he hoped Mr. Groia would appeal: "The decision should not stand."
Mr. Cherniak released an e-mailed statement earlier this month on behalf of his client, in which he said the case has taken a personal toll on Mr. Groia as his wife faces a battle with cancer.
"The last three months have been extremely difficult ones for Mr. Groia and his family. He and his wife have been battling her new cancer diagnosis and therapy since the beginning of April," the statement reads.
"While he would much rather be single-mindedly devoted to that fight, he and his wife have nonetheless agreed that this decision must be appealed even at great personal cost to them. If it is allowed to stand, it will cause great and permanent damage to the profession."