Civil Litigation, Employment & Labour

SCC decision a victory for ‘zealous advocates’

By Rob Lamberti, Contributor

A recent Supreme Court of Canada (SCC) ruling clarifies the boundary between what constitutes incivility in a courtroom and strong legal advocacy, Toronto employment lawyer Deborah Howden tells

The Law Society of Ontario (LSO) launched a proceeding against Toronto securities lawyer Joseph Groia 2007 for professional misconduct in court while successfully defending a client in a lengthy and complex fraud trial. The lawyer was cited by the law society for attacking Ontario Security Commission prosecutors both professionally and personally.

The lawyer received a $200,000 fine, a one-month suspension and ordered to pay about $2 million in legal fees in 2012.

He challenged the decision but it was upheld by the Divisional Court and the Court of Appeal until the Supreme Court of Canada overruled the LSO in a 6-3 judgment this year. The majority found that while the LSO retains the ability to determine whether courtroom behaviour can amount to professional misconduct, lawyers are also bound to fearlessly advocate for their clients, Howden says.

"The majority of the court took the position that the law society does have a role to play with respect to in-court conduct," says Howden, a partner with Shibley Righton LLP's Toronto office.

"However, the Supreme Court has cautioned that for a finding of incivility, it is not enough that the in-court conduct be personally disparaging," she says. "The impugned comment has to be without any factual underpinning or foundation, and the lawyer has the right to be wrong about the law and the allegations. It also assists any lawyer accused of courtroom incivility if the presiding judge does not take issue with the behaviour, because they are the ones who can assess it in person.”

Professional misconduct is "extremely context-dependent" and in order to be guilty of it, behaviour has to be more than rude or discourteous, Howden says.

"The decision is not a victory for rude lawyers," she says. "It is a victory for zealous advocates.

"Does that duty trump the duty of civility? The court has clearly addressed that and I think the answer is no," Howden says. "They have to coexist."

In her concurring reasons, Justice Suzanne Côté went further than the majority, stating a law society's inquiry into a lawyer's courtroom behaviour intrudes on a judge's function of managing the court, the trial and their ability to impose sanctions.

"It does so by casting a shadow over court proceedings — in effect, chilling potential speech and advocacy through the threat of ex-post punishment, even where the trial judge offered the lawyer no indication that his or her conduct crossed the line," Côté wrote for the majority. "And it permits an administrative body to second-guess the boundaries of permissible advocacy in a courtroom that is ultimately supervised by an independent and impartial judge."

Howden says there is a tension between the duty of lawyers to be courteous and civil, all while upholding their obligation to advance a client's case "fearlessly and with resolute advocacy."

Indeed, she notes Rule 5.1(1) of the LSO’s Rules of Professional Conduct indicates counsel should "advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law."

Howden welcomes that clarity and the acknowledgement that each in-court situation is unique, requiring determination on context and says she doesn’t expect the ruling will open the door to more rude behaviour.

"In my view, this is not a licence from the Supreme Court of Canada to be needlessly impolite, disparaging or discourteous," she says. "It has to be warranted."

She says prior to this ruling, some lawyers had a sense of constraint on their ability to fully advocate for their clients.

"I think, in particular with members of the defence bar, there was a concern that the LSO was looking over your shoulder to ensure your defence of a case or the positions you were advancing on behalf of your client didn’t amount to incivility," Howden says. "The case was a cautionary tale for litigators and advocates and it sort of drew a line in the sand.

"So the vindication at the SCC level is a welcome relief for many lawyers, and now they know that as long as they're acting in good faith and there is some basis for their position, they should be immune to professional misconduct proceedings," Howden says.

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