It reads like a Miss Manners column - but for lawyers.
A report from the Law Society of Upper Canada, recapping testimony at a series of "civility forums" held recently across the province, sums up what some see as a rising tide of rudeness in the courtroom. Participants complained of lawyers behaving badly - being late, failing to stand when a judge enters, making faces, rolling eyes and showing "an attitude of truculence when rulings are made." The report also singled out lawyers for the use of "dismissive body language," the slamming of doors or books and even griping about having to wear black gowns.
Lawyers have done much worse, of course. A Toronto lawyer was suspended in 2008 for punching her own client in the face. An Ontario lawyer was sanctioned in 2007 for threatening to be "10 times a bigger asshole than you" in a letter to a mediator. Fiery native-rights lawyer Bruce Clark was disbarred in 1999 after contempt-of-court convictions for accusing judges of genocide and threatening to arrest them.
Few would disagree that lawyers should try to avoid punching people. But some contrarians think a recent crackdown on incivility in the legal profession, spearheaded by departing Law Society of Upper Canada treasurer Derry Millar, is a waste of time. Some argue it could actually harm the justice system by forcing lawyers, especially defence lawyers, to think twice before making the strongest possible arguments on behalf of their clients, for fear of facing disbarment down the road.
The push for politeness includes a new protocol for judges to complain about lawyers, a new mentorship program to steer young lawyers' behaviour, and new training courses. But the Law Society has also started launching more frequent disciplinary hearings for barristers accused of acting out.
Philip Slayton, the former dean of the University of Western Ontario's law school and the author of Lawyers Gone Bad, is civil, but blunt, when he warns that the civility movement is a distraction from more important problems, like the dysfunction of Ontario's legal aid program.
"There's so many big and pressing issues that we should be talking about, to be running around talking about being nice to everybody, it's a waste of time and it's silly," Mr. Slayton said.
He adds that the issue is typically Canadian: "I don't think most Americans, particularly lawyers, worry too much about how nice they should be."
Alice Woolley, an assistant law professor at the University of Calgary, says lawyers are sometimes required by the ethics of their profession to be anything but nice: They must often ask tough questions, accuse witnesses of lying, or even argue for the acquittal of the guilty.
She says she has no problem with informally encouraging lawyers to be more civil. But launching discipline hearings any time lawyers get heated is "potentially dangerous" for the profession, she argues.
She cited the civility crackdown's most prominent victim: Joseph Groia, the Bay Street lawyer facing misconduct allegations for "abusive" behaviour toward Ontario Securities Commission lawyers while successfully defending Bre-X Minerals Ltd. executive John Felderhof from insider trading charges.
"There's a really big difference between the Law Society teaching people about effective advocacy, which often to my mind involves being more civil, and going after Joe Groia, who successfully represented a guy that the court of public opinion had convicted years ago," Ms. Woolley said.
Mr. Groia, who has hired prominent litigator Earl Cherniak - one of Conrad Black's lawyers - to defend him against the allegations, says the civility initiative will put a "chill" on defence lawyers, possibly muting their attacks on the prosecution.
He warned this could mean more wrongful convictions, raising the example of disgraced pathologist Charles Smith, blamed for a string of false diagnoses that led to a string of erroneous child murder charges and convictions.
"If I had stood up and said 'Dr. Smith, you're a liar. I don't believe a word you're saying. I believe this is all voodoo science,' I'm now being told by the Law Society, 'Mr. Groia, you'd better find some nice way of doing that, and not be fearless,'" Mr. Groia said.
Mr. Groia agrees that lawyers who are uncivil outside the courtroom deserve some sort of sanction. But inside the courtroom, he said, judges are supposed to maintain order, and the Law Society shouldn't be second-guessing them: "I don't believe that lawyers in court should be using the F-bomb … but I also don't believe that there's any role for the Law Society to play second-guessing how defence lawyers stand up to the powers of the state on behalf of their client."
In an interview, the Law Society's treasurer would not comment on Mr. Groia's case. But on the broader issue, he is unapologetic. He says complaints about civility to the Law Society have spiked in recent years. And the issue was singled out as a growing problem by prominent Ontario judges in two recent landmark reports on reforming the justice system.
Lawyers can still go to the wall for clients, he argues, but they can do it without losing their cool.
"You are going to ask some tough questions. Sometimes you are going to get in people's faces," Mr. Millar said. "But you do it professionally. You can do it civilly. That's all we're saying."
Some at his recent civility forums suggested that lawyers may be learning their bad behaviour from American TV courtroom dramas. Mr. Millar agrees. But he adds that particularly for criminal lawyers, legal aid cutbacks have reduced the number of junior lawyers or students who get to observe a senior lawyer in court, and learn first-hand how to act.
Asked whether the lawyers depicted on the long-running and recently cancelled Law & Order set a bad example, Mr. Millar acknowledged that he doesn't watch much television these days: "I watched Perry Mason when I was young. He was very civil. He would be a good role model for young lawyers. It's the other ones who are not."