The Law Society of Upper Canada has never defined what they mean by "incivility". Given how it is being applied, one begins to wonder whether they want it that way.
Reference is often made to a B.C. case - Goldberg v. The Law Society of British Columbia - where a lawyer was disciplined for claiming that opposing counsel, John Banks, was lying to the Court about his health problems to gain sympathy, and had a cocaine addiction or other substance abuse problem. All of this was found to be false or unsubstantiated. Mr. Goldberg was suspended for three months and ordered to pay costs.
Such misconduct is clearly objectionable - a form of name-calling, a personal attack on the opposing lawyer, albeit an extreme one. If that is what is meant by incivility then what Goldberg did certainly qualifies and sanctions are appropriate. However, note the penalty: a three month suspension, for the most egregious and outrageous example of incivility imaginable - not only calling someone a cocaine addict, but also getting other people to repeat the accusation in false and misleading affidavits based on hearsay and innuendo.
It is disconcerting, however, that the Law Society's approach to incivility does not distinguish between bad manners - name-calling, profanity, sexual or discriminatory comments, and the like - and criticism and allegations of wrong-doing against opposing counsel, witnesses, and the judge. Yet these are fundamentally different in nature.
Criticism and Allegations of Wrong-Doing
Criticism of your opponent in terms of their case and how they are presenting it is inevitable. It is the basis of every costs application made thousands of times a court day across Ontario. Your goal as an advocate is to build up your own case and tear the other side's down. You do the latter by attacking their position, their evidence, their witnesses, i.e. criticizing.
When the Law Society tries to apply "incivility" to these garden-variety criticisms, they are essentially conducting an after-the-fact review of what you argued and how you argued it to determine whether you either shouldn't have raised the criticism or should have raised it in a nicer way.
It is an impossible exercise as the Groia hearing has already demonstrated. No one can say what issues and positions should or should not have been raised or taken in the Felderhof case - we weren't there. And the Law Society Hearing Panel is neither sufficiently informed nor qualified enough to second-guess Mr. Groia, the OSC, or the trial judge and their decisions that led to the course of conduct they chose, the arguments they made, or how or why they made them.
What is even more dangerous is equating an allegation of wrong-doing with incivility. It is one thing to say your opponent sleeps with goats. This is name-calling, personal, and entirely inappropriate. It is quite another to say your opponent (or someone else in the courtroom) is guilty of misconduct - being dishonest, withholding relevant documents, or otherwise subverting the process in some improper way. While this may have a personal element as it reflects badly on the person who is accused, it is an attack on someone's behaviour not their personality and is legitimate to the extent that the behaviour is relevant to the judicial process.
Lawyers have to raise issues of misconduct wherever and whenever they happen in order to protect their clients. This is particularly important in the criminal context. Though discussed more fully in other pages, this is the gravest mistake that is being made in the Groia incivility case. Almost everything he said that is now being called "rude" by the Law Society, related to Groia's arguments that Felderhof was not receiving a fair trial. To characterize allegations of prosecutorial misconduct as uncivil and sanctionable is to say that no lawyer may ever raise them at all. Sad news for those wrongly accused.
Curiously, neither the Law Society nor the Attorney General seem to have considered how incivility might hamper the prosecution in a criminal case. Would the Crown be reported for calling a witness "lazy" when they were trying to discredit them? Wouldn't every time a prosecutor cross-examined an alibi witness and suggested that they might have a motive to lie for the accused be considered rude? They are, after all, casting aspersions on the witness's personal integrity merely by asking the question.
Taken to its extreme, you could argue that the Crown could never actually call anyone a fraudster or a murderer during trial, even if those were the crimes that were being prosecuted at the time, because until the end, the crime is not yet proven, and if allegations of wrong-doing equals name-calling then the Crown would be behaving in a decidedly uncivil manner, wouldn't they?
In short, while profanity and name-calling is immature, embarrassing, and has no place in the courtroom, criticism is an essential and effective aspect of advocating in the adversarial system, and, allegations of wrong-doing are inherent in the process and fundamental to its proper functioning. When a lawyer does these things in court, they are just doing their job.
Sarcasm
In one of the LeSage-Code Reports is this statement: "lawyers must never make personal insults (true) and must never use sarcasm (what?)". It is an astonishing proposition - sarcasm is now outlawed? When were you going to tell us? After we have been sarcastic in court and are about to be suspended?
With criticism comes cynicism and with cynicism comes sarcasm. It would be difficult to find any litigating lawyer who does not have a finely honed sabre of sarcasm in their repertoire. Sarcasm in the courtroom manifests itself as negative metaphors or other imagery to make a negative point, in other words, a means to criticize.
For example, in R. v. Felderhof, there was an issue about whether a set of documents that were in one location and then flown to another were the same set of documents that arrived off the plane. One of the lawyers said something like "Right. The pilot got up from his seat, left the cockpit and went down into the cargo bay and took some documents. Shall we call all the airline staff as witnesses?"
Interestingly enough, that was Mr. Naster for the OSC. Not Joe Groia.
Sarcasm is just a weapon and, in the right hands, a very effective one. Negative rhetoric is almost entirely ineffective without sarcasm. Imagine the difference if Mr. Naster had said instead - "it is not likely that documents disappeared during the flight." It has the strength of a paper bag collecting rain in a thunderstorm, but at least it is not sarcastic.
With respect, it is suggested that the vast majority of lawyers would not accept the LeSage-Code statement that sarcasm is unacceptable and amounts to unprofessional conduct. And no lawyer would survive a review of their correspondence and transcripts for an absence of sarcastic comments, including ones who may disagree.
Effects of Excessive Incivility Prohibitions
What is most striking about the Groia hearing thus far is the stultified atmosphere that the spectre of incivility has caused. Tom Curry of Lenczner, Slaght, Royce, Smith, Griffin, is conducting the case against Mr. Groia for the Law Society. He was noticeably frustrated, hamstrung, and unable to let loose with the type of colourful, though by all accounts very able, rhetoric he is known for. The two Benchers on the Hearing Panel also appeared choked by the chains of prohibitive politeness around their necks.
What is most striking about the Groia hearing thus far is the stultified atmosphere that the spectre of incivility has caused. Tom Curry of Lenczner, Slaght, Royce, Smith, Griffin, is conducting the case against Mr. Groia for the Law Society. He was noticeably frustrated, hamstrung, and unable to let loose with the type of colourful, though by all accounts very able, rhetoric he is known for. The two Benchers on the Hearing Panel also appeared choked by the chains of prohibitive politeness around their necks.
This has led to all three of them pouncing on opportunities to criticize the trial judge, Justice Hryn, and sarcastically so. It is almost as if, smothered by the blanket of incivility they have covered themselves with, they are gasping with relief to finally have a opening through which to unleash their caustic wit on anyone, since they cannot do so against Mr. Groia. That would be rude.
Examples:
Examples:
- Thomas Conway (Chair): In a sarcastic tone: "They had a 'special objection' and a 'standard objection'?" followed by wry look and a small derisive snort.
- Susan McGrath (Member): "It was a ruling without a ruling" with a prim hurrumph.
- Tom Curry (LSUC Lawyer): Eagerly, in a cutting tone "Yeah and you have to wonder just what they were doing in a voire dire at this point anyway."
At one point Curry even slipped, raised his voice, sharpened his tone, and started pointing his finger forcefully at Mr. Groia's lawyer, Earl Cherniak, in response to an objection. When he realized what he was doing, Curry sheepishly slid back into the inert and monotoned mundaneness that is mandatory if too much expression during oration will get you an incivility citation.
It is somewhat amusing to see the Law Society itself struggle in the mire of their own making. But merriment is difficult to sustain in the face of this colossal waste of time and prohibitive expense to Mr. Groia and unnecessary damage to his reputation.
If bringing in false evidence that someone is a cocaine addict merits a suspension of just three months, then what does calling someone "lazy" warrant (even if you ignore the fact that it was consistent with the context)? Five seconds? And this is worth a ten day hearing and $500,000 in legal fees? Is this a responsible use of Law Society Membership Fees or does the Law Society have so many millions in the bank that they can engage in specious proceedings and try to ruin someone, just because they can?
Sorry. There is that sarcasm again. If calling someone a cocaine addict results in a three month suspension then calling someone lazy should result in a much shorter suspension. The costs involved are disproportional to any expected outcome. The Law Society's resources may be better used in other ways.
Does that get me a free pass past the civility police? Oh-oh ... Oh forget it. I'm doomed.
