Bay Street lawyer Joe Groia, facing up to a four-month suspension for "incivility" during the high-profile Bre-X trial a dozen years ago, argued Tuesday that the sanctions he faces from his profession's regulating body violate his right to free speech.
In a hearing before a three-member disciplinary panel of the Law Society of Upper Canada, Mr. Groia's lawyer, Earl Cherniak, argued that the law society's submissions on the penalty his client should face wrongly single out comments Mr. Groia made criticizing the regulatory body's recent push to police lawyer behaviour for civility.
"Mr. Groia's positions are irrelevant to the penalty at all," Mr. Cherniak told the panel. "... He's entitled to his views like any citizen."
The law society argues Mr. Groia has shown a lack of contrition, and that he deserves a public reprimand and a two-to-four-month suspension.
The disciplinary panel previously found Mr. Groia had violated the profession's rules for his rhetorical attacks on the prosecution during his successful defence of former Bre-X Minerals geologist John Felderhof on securities charges. Tuesday's hearing was specifically about what penalty Mr. Groia should face. He has vowed to appeal the original decision.
The issue of freedom of speech unexpectedly took the stage in another way at the hearing. Law society lawyer Thomas Curry successfully sought to keep a portion of Mr. Cherniak's arguments, over whether Mr. Groia should be forced to hand over a $250,000 cheque toward the law society's legal costs for the lengthy prosecution, under wraps.
The three-member discipline panel agreed to impose a "temporary non-publication" order on a series of e-mails from 2009 between Mr. Curry and Mr. Cherniak that relate to an attempt to settle the case. Portions of documents submitted to the panel that refer to the e-mails, as well as some arguments in Tuesday's hearing, were also subject to the publication ban.
Panel chairman Thomas Conway, who is also the law society's treasurer, or top official, said the panel needed to impose the temporary order so that it could later determine if the documents are subject to privilege and must remain confidential.
Mr. Cherniak opposed the move to seal the evidence. Earlier, he told the panel that he would allege in his arguments that the law society broke its own rules in 2009 when it was in settlement talks with Mr. Groia – talks which then failed, leading to the hearing. The two sides had initially agreed to settle the matter without a full discipline hearing, using instead a law society procedure known as a "regulatory meeting."
Before the non-publication order was imposed, the law society said the documents Mr. Cherniak intends to use should remain confidential, citing a legal principle that keeps these kinds of talks and any admissions made in them, secret.
The panel reserved its decision on the penalty Mr. Groia must face.