Joe Groia is charged with professional misconduct under the new "civility" regime for his conduct in a trial that occurred over ten years ago - R. v. Felderhof. The thrust of the case is that when raising issues of prosecutorial misconduct, Mr. Groia did so with excessive rhetoric and zeal. In short, he raised unpleasant issues but when he did, he did not do it nicely enough.
The Law Society offered Mr. Groia a settlement if he would admit that his conduct had been improper. To his credit, he refused. The evidence against Mr. Groia does not appear to establish that he did anything other than raise appropriate concerns about whether his client was receiving a fair trial. Accusations of sarcasm and the turn of phrases used by Mr. Groia in the hearing are not at all unusual or beyond the norm nor were they the type of profanity or petty name-calling that raises genuine issues of unprofessional conduct by lawyers on the basis of "incivility" or rudeness.
The fundamental difficulty with the way the Law Society of Upper Canada is going about this case and others related to it is that only lawyers who raise issues of prosecutorial or judicial misconduct are being subjected to these inquiries. The potential effect is to create "accountability chill" as lawyers may be reluctant to challenge errors or excesses by judges or prosecutors if they know that some time later, they may lose their livelihood due to Law Society sanctions.
In order to combat the appearance that only certain lawyers are being targeted in these very limited circumstances, the Law Society would have to bring disciplinary proceedings against every lawyer in every case that has ever happened where the lawyer used sarcasm or too-flowery language.
Furthermore, in order to be consistent, the Law Society would have to also sanction the Crown for its uncivil conduct in serious criminal trials, if, when describing the conduct of the accused or otherwise, the prosecutor's language became too excessive on the same basis in the Law Society's analysis in the Groia case.
However, if that were the case, "incivility" by the Crown or even the judge during trial could become an automatic appeal for all defendants, since according to the Law Society and others, civility is so fundamental to the functioning of the justice system.
The purpose of this blog is to encourage debate from the public and defence lawyers in particular about this issue and the manner in which the Law Society has chosen to proceed against Joe Groia and other lawyers. We look forward to hearing from you.
