Civility vs. Advocacy – Case Comment on Groia v. LSUC (SCC)Leave your thoughts
On June 1, 2018, the Supreme Court of Canada handed down a highly anticipated decision: Groia v Law Society of Upper Canada, 2018 SCC 27. Joe Groia, a commercial litigator practicing in Toronto, was appealing a finding of professional misconduct by the Law Society of Upper Canada.
While defending a client on charges of insider trading, Mr. Groia and the prosecutors’ relationship had turned acrimonious; the trial was characterized by a pattern of sarcastic comments, personal attacks, and allegations of professional impropriety. Following the trial, neither the judge nor the prosecutors took issue with Mr. Groia’s conduct. Rather, it was the Law Society itself which took it upon itself to initiate disciplinary proceedings against Mr. Groia. The Law Society suspended Mr. Groia’s license for two months and fined him $247,000 in costs. The Law Society Appeal Panel cut the suspension in half but held the imposed fine at $200,000. The Divisional Court upheld the decision, and the Court of Appeal dismissed any further appeal.
Groia was seen by many as a decision which would clarify the concept of civility in the context of an advocates’ professional and ethical obligations. The Supreme Court’s judgment made clear that zealous advocacy in the interest of one’s client, rooted in good faith, and which falls within legal and ethical obligations does not amount to professional misconduct. Writing for a six-person majority (Justice Côté concurring in the result), Justice Michael Moldaver largely agreed with the Law Society Appeal Panel’s framework for measuring professional misconduct. However, the majority disagreed with the way the Appeal Panel had applied its test. The Supreme Court found that Mr. Groia’s conduct did not amount to professional misconduct on the basis of incivility.
In granting leave for appeal, the Court obviously felt compelled to clarify the parameters of what a trial, and by extension our adversarial system, ought to look like in practice. Justice Moldaver is clear from the onset of his 161-paragraph decision that “[…] trials are not – nor are they meant to be – tea parties”. Rather, trials constitute a unique legal ecosystem where civility, professional obligations and resolute advocacy need to coexist to properly govern the lawyer’s conduct. However, the right of an accused to make full answer and defence must not be “[…] sacrificed at the altar of civility”.
This then begs the question: at which point does resolute advocacy become improper conduct? In adopting the Appeal Panel’s context-specific framework, the Court understood impropriety as being a high bar to meet, and did so out of a fear that defining it otherwise might chill vigorous advocates to the detriment of their clients’ interests. Operating off the premise that propriety includes a balance between civility and advocacy, Justice Moldaver even goes as far as saying that the best forms of advocacy are those which are done in a civil fashion. Improper conduct is thus understood as conduct which would necessarily impede the truth-seeking function of a trial or conduct which might also detract from a just resolution of proceedings.
Notions of civility and advocacy aside, the decision also reaffirmed the important role that the Law Society plays in regulating the conduct of its members. Typically initiated by parties or judges, the Supreme Court makes it clear that the Law Society also holds the ability to initiate disciplinary proceedings against the conduct of its members, be it in or out of court. Further, while the majority in Groia may have disagreed with the Law Society’s ruling, it also went to great lengths to endorse both the framework which the Appeal Panel relied on and the expertise of the Law Society’s adjudicators. Relying on foundational caselaw such as Dunsmuir, Edmonton East, and Mouvement Laïque Québécois, Justice Moldaver ruled that the decision taken by the Law Society was entitled to a large degree of deference and should be reviewed on a standard of reasonableness; as experts called upon to interpret their home statute, it ought not be up to a reviewing court to determine on a standard of correctness whether these experts were correct in coming to their decision. The Law Society thus retains a very robust ability to both regulate and reprimand their members independently of reviewing courts.
The ruling in Groia should not be taken as a license for lawyers to skirt their ethical and professional obligations. While the Supreme Court does endorse a view of civil conduct which might on its face appear to allow for behaviour which rubs up against the boundaries of impropriety, it does not allow for conduct which crosses that boundary. Lawyers are still strictly held to their ethical and professional obligations in a way that is coherent with fearless advocacy. While some might read the decision otherwise, it is also important to note that the Law Society now holds wider jurisdiction to initiate proceedings against members that it might perceive as having crossed the line. The Court has thus crafted a regime which allows for advocates to fearlessly raise every issue for their clients, while also enabling wider capacity for the Law Society to hold its members accountable.
This post was written by Adam_Weisberg