Canadian Lawyer

THIS MONTH EXCLUSIVELY ON editor's desk CAnADIAn By Gail J. CoheN Law ye r m ag . co m Human Rights . . . Here & There Judging civility university of Ottawa law school's sonya nigam's column on human rights and international law. January 14 T his month's cover story looks at the thorny issue of how discipline is doled out in the profession. There will continue to be disagreement over whether certain members of the bar are treated differently than others, but it is fairly undisputable that small firm and sole practitioners end up in the crosshairs of regulators more often than big firm, government, or in-house lawyers. One of the most controversial discipline proceedings in recent memory is that of the Law Society of upper Canada's prosecution of Joseph groia for incivility, the details of which are covered in the article "Discipline dichotomy." In early December, members of the bar held a panel discussion focusing on groia's discipline odyssey and the issue of the future of zealous advocacy in Canada. The panel sported some heavy hitters: former Supreme Court of Canada justice Ian Binnie, well-known criminal defence lawyer David humphrey, veteran litigator Tom heintzman, and law professor Alice Woolley, who probably knows more about professional regulation of lawyers in Canada than anyone else. I came away with two main points, although many more came up: • Judges, not law societies, should be the primary arbiter on procedure and civility in the courtroom. • What exactly constitutes civility is very much a grey area, which makes it practically impossible to model one's behaviour on. On the first point, every litigator, including the large audience of senior members of the bar, would agree that a courtroom is an adversarial place, arguments can get heated, and the most important role of counsel is to advocate, sometimes stridently, for their client. "If there isn't zealous advocacy, there's not much future for trials," said Binnie. he noted that within the courtroom the judge needs to be in control, and if things become "uncivil," it's the judge's role to rein it in. And if the judge cannot, that is a problem with the training and/or appointment process of judges. "It's very hard after the fact for someone to come and judge the behaviour of those in the courtroom," he said. Wooley made an excellent point when she said these "regulatory scoldings" for incivility — that are coming from the law societies in Ontario and British Columbia the most frequently — are too subjective and often don't take into account or completely disregard the fact there may be actual underlying professional misconduct that's more important to address. "The issue is that law societies talk about rudeness and not the underlying conduct, so you don't get to the heart of ethical duties," she said. Not to mention that incivility is totally subjective, "sort of an old-fashioned conservative view of what we think a lawyer should do. Law societies are legislating a higher class of insult." It was quite clear from the panel and members of the profession in attendance that civility in the courtroom, while important, should not be something judged by law societies, outside the courtroom, and after the fact. hard to argue with that. The Accidental Mentor Lee Akazaki's column offers useful mentorship advice for young lawyers. January 14 Financial Adviser Financial planner Alan Acton helps lawyers better manage their hard-earned money . January 14 Trial by Fire Associate Lindsay scott shares the ups and downs of learning on the job. January 21 Definitely Mabey stephen mabey examines the thorny issues facing law firm management. January 21 Trials & Tribulations margaret Waddell ruminates on issues of import and interest to litigators. January 21 Law Library Reviews of books — and more — of a legal nature from Damian Penny. January 21 Class Acts Kirk baert's column takes a critical look at class action litigation across the country. January 28 The Immigration Line Group Publisher: Karen Lorimer Editorial Director: Gail J. Cohen gail.cohen@thomsonreuters.com Staff Writer: Michael McKiernan michael.mckiernan@thomsonreuters.com Copy Editor: Mallory Hendry Art Director: Bill Hunter Production Co-ordinator: Catherine Giles catherine.giles@thomsonreuters.com Contributors: Jean Sorensen, donalee Moulton, Kathryn Leger, Geoff Ellwand, Jennifer Brown, Yamri Taddese, Kevin Marron, Mark Cardwell, Bruce Livesey. Canadian Lawyer is published 11 times a year by Thomson Reuters Canada Ltd., One Corporate Plaza, 2075 Kennedy Rd., Toronto ON. M1T 3V4 (416) 298-5141. Fax : (416) 649-7870 All rights reserved. Contents may not be reprinted without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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For all circulation inquiries and address changes send a copy of your mailing label or labels along with your request in writing to Canadian Lawyer , One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 www.CANADIAN Jennifer nees lets us know what's on the minds of the immigration bar. January 28 Making Rain executive coach Debra Forman's video column on career and business development. January 28 L a w ye r m a g . c o m Jan uary 2013 3

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