The Supreme Court handed down a split decision in Groia on June 1, with the majority ruling that the standard of review of a Law Society’s Appeal Panel decision is whether it was reasonable, and then deciding that the Appeal Panel was unreasonable to find Joseph Groia’s conduct amounted to professional misconduct.
The CBA intervened in the appeal to argue that a test for incivility amounting to professional misconduct should properly balance three values of fundamental importance to our court system: the value of courtroom civility, the independence of the judiciary, and the right of litigants to fearless and zealous representation. Pierre Bienvenu, Andres Garin and Jean-Christophe Martel of Norton Rose Fulbright Canada LLP / S.E.N.C.R.L., s.r.l. appeared before the Supreme Court on the CBA’s behalf.
The majority based its decision on a “reasonableness” test as the standard of review – and eight of the nine justices agreed that this was the appropriate standard of review.
[2] To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.
[3] By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.
[69] … in my view, requiring the Law Society to evaluate the fairness of a proceeding would shift the focus away from the lawyer’s behaviour and inappropriately imbue the Law Society with a judicial function.
[71] Although of doubtless importance, the duty to practice with civility is not a lawyer’s sole ethical mandate. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. The duty of civility must be understood in light of these other obligations. In particular, standards of civility cannot compromise the lawyer’s duty of resolute advocacy.
[72] The importance of resolute advocacy cannot be understated. It is a vital ingredient in our adversarial justice system — a system premised on the idea that forceful partisan advocacy facilitates truth-seeking: see e.g. Phillips v. Ford Motor Co. (1971), 18 D.L.R. (3d) 641, at p. 661. Moreover, resolute advocacy is a key component of the lawyer’s commitment to the client’s cause, a principle of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms: Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, at paras. 83-84