Canadian Lawyer

OP I N ION BY JIM MIDDLEMISS BACK PAGE Groia incivility ruling a travesty incivility is apparently like pornography — you know it when you see it. That lack of clarity should make litigators nervous, forcing them to think twice before attack- ing opponent' T he Canadian Oxford Dictionary defines incivility as a "rude or discourteous act." However, for the Law Society of Upper Canada, or the civility police may come knocking. That is the conclusion I draw from s arguments or trial strategy; reading The Law Society of Upper Canada v. Groia, which found Joseph Groia engaged in incivility — professional mis- conduct — when successfully defending John Felderhof, former Bre-X Minerals Ltd. senior vice president. Felderhof was acquitted of insider trading and issuing misleading press releases after a hard- fought trial, which bogged down over dis- closure issues and OSC prosecutors failed to oust Justice Peter Hryn for bias. New prosecutors were appointed and the case resumed with less animosity among coun- sel. Groia now faces possible disbarment for comments made during the first phase of trial. He is rightfully appealing. The Groia prosecution and ruling smell like dead fish left in the sun for a week. Groia didn't tell someone to "fuck off. didn't use racial epithets, and he didn't try to make a citizen' " He panel. These are famous instances of law- yer incivility that have been condemned by regulators and the courts. Rather, Groia' sists of calling the OSC "government." He is being condemned because he used lan- guage from a Supreme Court of Canada ruling in open court. He is being pilloried for fighting like hell to defend his client against serious charges — a fight that Hryn did not seem to take issue with since he never censured Groia' s alleged misconduct con- he chided the OSC on a few occasions. Groia' s conduct, although casm and had the audacity to raise the spectre of prosecutorial misconduct, yet s big mistake is that he used sar- s arrest of an appeal court Hryn never reined him in. Based on the fights Groia had with the OSC over disclo- sure, process, and evidence, his testimony was he believed that misconduct was a plausible avenue to pursue. There was never a formal complaint against Groia by any trial participants. The LSUC was alerted to the case by media reports and laid charges without reading transcripts. It never called witnesses. It relied on two judgments that flowed from the motion to remove Hryn, rulings that criticized Groia (and sometimes the OSC), and essentially adopted the OSC position that Groia' it never addressed the OSC Groia miscon- duct allegations in any meaningful way (the LSUC disagrees). To fight them at the bias hearing would have put Groia' est in conflict with Felderhof 's. The problem is the defence team insists s conduct was improper. s inter- fight the bias motion and ensure Hryn wasn't kicked off the case. Two courts found the judge was not biased, includ- ing justice Archie Campbell, who while criticizing Groia noted "neither side in this case has any monopoly over incivility or rhetorical excess." Since Groia' Groia hired Brian Greenspan to help it would have been ludicrous to appeal the findings about his conduct and he person- ally wasn't a party to the proceedings. Yet, it is Groia on the carpet fighting for his career. The LSUC says it's an abuse of s client won, 50 SEPTEMBER 2012 www.CANADIAN Lawyermag.com icized his conduct because he was a "party in substance" and the rulings amount to findings of fact. Groia argues the com- ments are obiter. His defence calls the "party-in-substance" position a "new and unprecedented legal fiction" that will cre- ate a conflict between zealous lawyers and clients and hurt solicitor-client privilege. The Groia ruling is messy and needs to be appealed for three reasons. It's an attack ed. If the ruling stands, judges have effec- tively ceded control over lawyer conduct and trial management to the law society. I think judges will come to regret that. Second, the ruling muddies the litiga- s conduct if he felt it was unwarrant- with no test or proper definition of incivil- ity. Worse, it gives self-represented litigants a new tool. It opens the floodgates to complaints and creates a different set of standards between lawyers and lay litigants when it comes to courtroom conduct. Third, it will create litigation chill tion waters. It invites every lawyer unhappy with the other side' s conduct to complain and force lawyers to be more cautious in advancing the case of their clients, which will lead to wrongful convictions. How does that serve justice? The system couldn't get Felderhof, so it on judicial independence. Judges run their courtroom and Hryn could have stopped Groia' nailed his lawyer, who was unable to effec- tively defend himself against the charges. The law society seems intent on making Groia the poster child for incivility. It says, "a pattern of conduct that includes persis- tent attacks and sarcasm directed at oppos- ing counsel can form the basis of incivility. It also says he had an overriding duty to ensure the trial was conducted "fairly and efficiently. " next time you are in a fight with a prosecu- tor over disclosure. Or it could be your face on the poster. process for Groia now to try to open those doors and fight the earlier rulings that crit- " Remember those two lines the Jim Middlemiss blogs about the legal profes- sion at WebNewsManagement.com. You can follow him on Twitter @JimMiddlemiss.

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