Friday, June 1, 2018

Supreme Court Rules on Incivility as Professional Misconduct: Lawyer's State of Mind Matters

Relevant Excerpts from
The Majority's Reasons:

  [122]                              While I take no issue with the Appeal Panel’s approach, I am respectfully of the view that the Appeal Panel unreasonably found Mr. Groia guilty of professional misconduct. In assessing “what” Mr. Groia said, the Appeal Panel reiterated that misconduct allegations or other challenges to opposing counsel’s integrity cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. The Appeal Panel accepted that Mr. Groia’s allegations of misconduct were made in good faith. It based its finding of professional misconduct primarily on the fact that his allegations lacked a reasonable basis. However, contrary to its own approach, the Appeal Panel used Mr. Groia’s sincerely held but erroneous legal beliefs to reach this conclusion — one which, as I have explained above at paras. 88-91, cannot be reasonable.

[123]                              Once the allegations of impropriety — what Mr. Groia said — are no longer in the mix, it becomes apparent that the other factors in this case cannot reasonably support a finding of professional misconduct against him. As I will explain, the frequency of Mr. Groia’s allegations was, to some extent, a product of the uncertainty surrounding the manner in which abuse of process allegations should be raised — a factor the Appeal Panel did not consider.

[124]                              Moreover, the trial judge took a largely hands off approach and did not direct Mr. Groia as to how he should be bringing his allegations. Eventually, the trial judge did intervene, albeit quite late in the day, and he instructed Mr. Groia not to keep repeating the same allegations over and over again, but to simply register his objection. In response, Mr. Groia complied, albeit with the odd slip. And when the reviewing courts admonished Mr. Groia for his behaviour during Phase One of the Felderhof trial, Phase Two proceeded entirely without incident. Again, the Appeal Panel did not factor the trial judge and reviewing courts’ response to Mr. Groia’s behaviour and how Mr. Groia modified his conduct thereafter into its analysis.

[125]                              Taking these factors into account, I am respectfully of the view that there is only one reasonable outcome in this matter: a finding that Mr. Groia did not engage in professional misconduct on account of incivility.

    The Supreme Court of Canada's decision to overturn the Law Society Tribunal Appeal Panel's decision is grounded in their finding that there must be subjective fault or intent on the part of the lawyer with respect to assertions of impropriety directed towards opposing counsel or the process. The court clearly recognized that the administration of justice and the public interest is better served by affording lawyers flexibility to make strong allegations where they believe them to be well founded. The same is true of advancing novel legal arguments.  Below is an excerpt of what the court said:

[88]                              That said, the reasonable basis requirement is not an exacting standard. I understand the Appeal Panel to have meant that allegations made without a reasonable basis are those that are speculative or entirely lacking a factual foundation. Crucially, as the Appeal Panel noted, allegations do not lack a reasonable basis simply because they are based on legal error: at para. 280. In other words, it is not professional misconduct to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted.

[89]                              Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the court. Many legal principles we now consider foundational were once controversial ideas that were fearlessly raised by lawyers. Such innovative advocacy ought to be encouraged — not stymied by the threat of being labelled, after the fact, as “unreasonable”.

[90]                              In my view, there are two reasons why law societies cannot use a lawyer’s legal errors to conclude that his or her allegations lack a reasonable basis. First, a finding of professional misconduct against a lawyer can itself be damaging to that lawyer’s reputation. Branding a lawyer as uncivil for nothing more than advancing good faith allegations of impropriety that stem from a sincerely held legal mistake is a highly excessive and unwarranted response.

[91]                              Second, inquiring into the legal merit of a lawyer’s position to conclude that his or her allegations lack a reasonable basis would discourage lawyers from raising well-founded allegations, impairing the lawyer’s duty of resolute advocacy. Prosecutorial abuse of process is extraordinarily serious. It impairs trial fairness and compromises the integrity of the justice system: Anderson, at paras. 49-50; R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 62-63. Defence lawyers play an integral role in preventing these dire consequences and holding other justice system participants accountable by raising reasonable allegations. Finding a lawyer guilty of professional misconduct on the basis of incivility for making an abuse of process argument that is based on a sincerely held but mistaken legal position discourages lawyers from raising these allegations, frustrating the duty of resolute advocacy and the client’s right to make full answer and defence

Commentary and Analysis:

   Regulatory bodies across Canada will need to reevaluate their approach on prosecuting lawyers for incivility in light of this ground-breaking decision from the Supreme Court of Canada.  Their prior approach to these prosecutions which appeared, at least to this observer, to view the fault requirement on these complaints along the lines of a strict liability offence must change.  

   Careful consideration will need to be taken to ascertain whether and to what extent they have evidence that the subject lawyer did not hold a good faith belief in their submissions or comments.  Perhaps even more significant - regulatory bodies will now need to take a more careful look at the source of the complaint against a lawyer.  Is the complaint coming from a party to the lis ?  Is the complaint coming from a source or party that may have an interest in undermining the subject lawyer's work ?  

   Complaints coming from administrative tribunals in the form of an addendum to their decisions which contain self-serving and illogical pronouncements such as "this conduct is not relevant to this decision" and which accuse the lawyer of bringing meritless motions and which are then widely published in the media and on social media by a member of the said tribunal ought to be carefully scrutinized so as not to adversely impact the legal rights of not only the subject of the complaint but the subject lawyer's client(s).(see for example - Justices of the Peace Hearing Panel in Re Massiah - Compensation Decision - On Twitter - see Deborah Livingstone@dresdengirrl - June 17, 2015)

   Similarly, complaints coming from a party to the lis such as the Crown in criminal matters should always be carefully scrutinized.   

   Above all, regulatory bodies will, now, more than ever, want to ensure that the proceedings which they do decide to bring to public hearings against lawyers for incivility have a strict adherence to fairness, transparency and public interest.  Persons associated with regulatory bodies which bring such proceedings against lawyers must be careful that they do not express strong and damning views in the media which can been seen by the public to be pre-judging or "rail-roading" the subject lawyer.
At the end of the day lawyer regulation must be seen to be done in the public interest.

About the author:

E.J. Guiste, like Mr. Joe Groia, believes that a lawyer's job is to fearlessly represent his client. This belief and the hostile reception he received from the JPRC Hearing Panel during his defence of H.W. Massiah led him to write A Catholic Lawyer's Prayer - a piece in which he shares with his readers the vulnerability of the advocate who stands up in strong defence of his client. Readers ought to read it.

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