Bay Street lawyer Joe Groia, who defended the geologist at the centre of the Bre-X gold scandal, has won a partial victory after a Law Society of Upper Canada appeal panel halved a two-month suspension he was facing for his courtroom rhetoric at the trial a dozen years ago.
In a decision released Thursday, a Law Society appeal panel maintains that Mr. Groia's personal attacks and allegations of wrongdoing aimed at the prosecution in the Bre-X trial "crossed the line" and amounted to "professional misconduct." But the decision dismisses much of the original discipline panel's findings.
The panel also cancels an order for Mr. Groia to pay $247,000 in costs, asking his lawyers for submissions on whether the original disciplinary panel's "errors" justified a lower bill. Mr. Groia has not said whether he would appeal this latest decision.
The battle, which may not be over yet, has been watched closely by many in the profession. Prominent voices have warned that a campaign to strictly enforce civility rules threatens to cause a chill among defence lawyers who fear that criticizing prosecutors too aggressively will land them before the Law Society.
Despite the reduction to the suspension, veteran criminal defence lawyer Edward Greenspan said the ruling against Mr. Groia remains a "serious blow to zealous advocacy" in courtrooms, pointing out that the actual trial judge in the Bre-X case did not complain about Mr. Groia's conduct.
"The freedom of speech is in the Charter of Rights and Freedoms, and it seems to be permitted to everybody in the entire country except for lawyers in a courtroom," Mr. Greenspan said. (Mr. Greenspan's brother, lawyer Brian Greenspan, was retained by Mr. Groia during the Bre-X trial and testified at his Law Society disciplinary hearing.)
The case dates back to Mr. Groia's successful defence of Bre-X Minerals Ltd. geologist John Felderhof, who faced a trial that began in late 2000 on quasi-criminal charges of insider trading and spreading false information. The Bre-X scandal, which rocked Bay Street in the 1990s, involved Indonesian gold-drilling samples that turned out to be fake. Observers say the trial's first 70 days were bitter, acrimonious and plagued by delays.
Mr. Groia was sharply criticized in court rulings on the Bre-X case for his courtroom "sarcasm," "invective" and "guerrilla theatre," and for his repeated attacks on the prosecution. In June, 2012, a Law Society discipline panel found Mr. Groia had violated his profession's rules.
Thursday's ruling criticizes the original disciplinary panel for failing to allow Mr. Groia to properly defend himself.
Much of the Law Society's case against Mr. Groia rested on stinging comments in decisions by judges who did not preside over the trial itself: one who ruled on an unsuccessful prosecution motion to have the Bre-X trial judge removed and another who wrote the Court of Appeal's ruling on that motion.
The appeal decision says the original discipline panel – chaired by Thomas Conway, the current treasurer or top official of the Law Society – was wrong to conclude Mr. Groia was not entitled to challenge the judges' comments.
Mr. Groia said he was pleased the appeal panel concluded it was not an "abuse of process" for him to defend himself: "I think from the standpoint of every other lawyer who goes to court on a regular basis there's going to be a huge sense of relief that nobody else is going to face the kinds of arguments that I've had to deal with."
The appeal panel also tossed aside a publication ban on settlement talks between the two sides, but dismissed Mr. Groia's argument that the Law Society broke its own rules during those negotiations.