Although it is not entirely clear, the civility movement seems to have began with a joint initiative between the Courts, the Government of Ontario, and the Law Society of Upper Canada to take steps to improve lawyer behaviour. Many pronouncements were made about the importance of civility to the justice system and the Law Society claimed that complaints about lawyers being rude were increasing. However, nowhere was there any concrete evidence of (a) that incivility was on the rise; or (b) that it had any material effect on the justice system.
Reliance was made on two studies about improvements to the justice system by former Justice Patrick Lesage and current Justice Michael Code (the same Michael Code who argued the recusal motion in the Felderhof trial based in part on Mr. Groia's incivility). In the first study, civility was #15 on a list of at least 20 and made a very brief appearance. In the second study, there were more suggestions on improvements to civility but again, it was hardly the primary focus. Both "studies" are curiously devoid of any explanation of methodology or evidence in support of the conclusions, at least as far as what was published on the Ministry of the Attorney General's website.
The Civility Protocols
In September of 2009, the Law Society of Upper Canada announced the "Civility Protocols" based on some of the recommendations of the second LeSage/Code Report.
Strangely, the protocols merely set out a process whereby judges could complain about lawyer conduct, conduct that in the past was not considered serious enough to mention. These new procedures allowed complaints by judges to be streamlined and accelerated - although the profession was never told that complaints by judges would now be getting this special treatment.
The profession was also never told what the consequences of judges' complaints about incivility, although mention was made about mentoring - implying that lawyers who were the subject of these complaints would receive help from senior counsel.
Most importantly, despite the LeSage/Code Reports, the civility movement in the Advocates' Society, and the Law Society's Treasurer's forum on Incivility, no one nowhere defined in with any specificity what incivility meant and what sorts of behaviour would or would not be acceptable under this new regime.
It is suggested that the Civility Protocols are misguided in a number of respects.
First, preferring complaints from judges is a potential violation of the independence of the Bar from the judiciary and, with the greatest respect, could be used to intimidate counsel particularly if the complaint is made during trial (which the LeSage/Code Report suggests should happen in some cases).
Secondly, judges already have the power to condemn the lawyer's conduct in Court and in their reasons, and award costs against the lawyer personally or hold the lawyer in contempt. A judge is already in a powerful position vis-a-vis the lawyer. Judges do not need any more assistance in governing lawyer conduct.
Thirdly, apart from criticism, the types of things that the judges were complaining about were, according to the Treasurer's Report, trivial - not standing, not gowning, making faces or rolling your eyes, slamming the door, etc. These hardly merit a complaint to the Law Society or anything more than an informal reprimand. There are far more important and serious issues of lawyer misconduct that needs to be addressed.
Fourthly, as mentioned before, civility is not defined and thus no one knows what it is they can or cannot do either in Court or out of Court. Certainly learning that bringing a recusal motion or using an "argumentative tone" with a judge will result in discipline would be a great surprise to most lawyers. Fairness demands that before a lawyer is penalized with professional sanctions, they must be warned about what will attract the attention of the Law Society.
Finally, to allow criticism of the judge to be the subject of an automatic and accelerated complaint to the Law Society is to allow judges to retaliate against lawyers who have challenged their authority or raised issues of the judge's own misconduct.
There are three cases pending in the Law Society where, though not stated, the primary complaint was by a judge who had been the subject of a recusal motion. All three of these lawyers (all women) were subjected to an indefinite interlocutory suspension pending the hearing each lasting over 6 months and still ongoing, and have been threatened with disbarment, when the reasonable penalty for incivility is at its maximum 2-3 months for the very worst offences.
To discipline lawyers for raising criticisms of judges is to, in effect, put an end to the ability of lawyers to hold judges accountable for their actions. It is suggested that this is a serious offense to the justice system and prevents lawyers from protecting their clients from anything and anyone, including judges.
In the Groia case, the bulk of the incivility relied upon by the Law Society relates to arguments that Mr. Felderhof was not receiving fair trial and suggestions of a possible argument of prosecutorial misconduct. In a parallel case commenced with Groia's at the initiation of the Civility Project, Kevin Mark Murphy was also sanctioned by the Law Society for raising issues of prosecutorial misconduct. As Mr. Murphy admitted to misconduct, he was spared the public oppobrium the Law Society is trying to administer to Joe Groia.
If raising wrong-doing on behalf of the Crown is going to be considered "rude", then with respect, the Law Society will have the effect of making sure that allegations or prosecutorial misconduct are never raised at all.
Thus, if you take these five cases together, the civility principles are being applied in circumstances where they will have the effect of preventing challenges by lawyers to excesses or abuses of public powers - by judges or the Crown. Yet, if you take this power of lawyers away, the public will be effectively left with no watchdog for the administration of justice.
If raising wrong-doing on behalf of the Crown is going to be considered "rude", then with respect, the Law Society will have the effect of making sure that allegations or prosecutorial misconduct are never raised at all.
Thus, if you take these five cases together, the civility principles are being applied in circumstances where they will have the effect of preventing challenges by lawyers to excesses or abuses of public powers - by judges or the Crown. Yet, if you take this power of lawyers away, the public will be effectively left with no watchdog for the administration of justice.
This is a matter of serious concern, particularly for the criminal bar who, already reluctant to raise such issues, may now feel too intimidated to make such arguments, fearing Law Society action. The Law Society refused to allow the Criminal Lawyers' Association to intervene in the Groia case to raise these concerns on behalf of the criminal Bar as a whole.
It is suggested that the Law Society has made many mistakes in connection with the civility issue and is compounding them by refusing to allow all interested parties to be heard.
Retroactive Application
Even more unjust is that these amorphous civility principles are being applied retroactively to conduct that occurred in same cases years ago. Mr. Groia's case falls in this category. It was almost ten years between the time the alleged uncivil conduct occurred and the commencement of proceedings against him. In Mr. Murphy's case, the conduct was at least five years old.
In 2000 or 2004, the civility movement had yet to take hold. Conduct in and out of the courtroom was what it was, some of it civil, some of it not. It is debatable whether lawyer conduct has changed appreciably since then or whether the same behaviour is occurring at the same frequency, and it is now just that it is noticed.
In any event, at no time prior to 2009 did the Law Society ever suggest to lawyers that incivility was a matter of serious misconduct. There was nothing in the Bar Admission Course, there were no seminars, there were no requirements for Continuing Legal Education geared specifically towards civility. In short, lawyers were never taught or warned that being too rude - and in what way or in what circumstances - would get you in trouble and in fact, prior to 2009, you didn't get into trouble, at least not much and not for much.
It is problematic enough that the Law Society has yet to establish clear guidelines and educational opportunities to allow all lawyers to know what the new standards of civility are, so that they can meet them. It is suggested, however, that it is grossly unfair to retroactively apply such standards to behaviour that occurred years ago when incivility was yet unknown and when that behaviour was well within the normal and accepted limits of courtroom conduct at the time.
Based on the above, Mr. Groia has strong arguments in his favour, including (1) that allegations of prosecutorial misconduct are not uncivil, they are a necessary part of a defence; and (2) that his conduct occurred eleven years ago and he cannot be held accountable for not meeting standards that were not developed until many years later, and are still not yet completely understood.
It is for these reasons along with others, that it is suggested that the Law Society's prosecution of Mr. Groia is unfair, unwarranted, and raises serious concerns about the effect on the ability of lawyers, particularly criminal lawyers, to protect their clients and prevent injustice.
