Appellate

Cherniak: Groia case 'among most rewarding' of career

By AdvocateDaily.com Staff

A nine-year legal battle that concluded with the Supreme Court of Canada (SCC) overturning a finding of professional misconduct against Ontario lawyer Joe Groia is not just a significant victory for advocates and the public alike, but according to his counsel, Earl Cherniak, the case ranks among the most memorable and worthwhile of his career.

“What was special about this case was that there was a huge public interest issue involved that’s of significance not only to lawyers, but I think more importantly, to the public that we represent — because whatever we say in court isn’t done for our own benefit, it’s done for the clients that we represent. What’s very satisfying about a case like this, what makes it so interesting to work on, is that it’s about real issues, it’s not about money,” Cherniak, partner with Lerners LLP, tells AdvocateDaily.com.

The SCC’s 6-3 decision in the case set aside a 2012 Law Society of Ontario (LSO) hearing panel decision and a 2013 LSO appeal panel finding that Groia displayed "incivility" during the insider-trading trial of a former Bre-X Minerals geologist before the Ontario Securities Commission, upheld by a 2015 Divisional Court decision and a 2017 Court of Appeal ruling.

The law society issued a two-month suspension in the matter and ordered Groia to pay $247,000 in costs, which the appeal panel later reduced to a one-month suspension and $200,000 fine.

Groia argued that both the Divisional Court and the law society appeal panel erred in their approach to the respective roles of the courts and the Law Society of Ontario when it comes to the oversight of an advocate’s conduct in court.

He submitted that, in most instances, the views of a presiding trial judge on the propriety of an advocate’s in-court conduct control whether the law society can and should exercise its disciplinary powers. He also argued that the appeal panel failed to properly consider the advocate’s duties of zealous advocacy and commitment to the client’s cause.

As Cherniak, who took on the case in 2009, tells AdvocateDaily.com, the most important takeaway from the SCC decision is the roadmap it gives the profession as to what is permissible and the limits of what Justice Michael Moldaver, writing for the majority, calls “resolute advocacy.”

"It maintains the jurisdiction of the law society to deal with these cases — that’s an argument we lost — but if you look at paragraphs 71 to 76 you will see the analysis Justice Moldaver goes through as to the importance of balancing the obligation of civility with the obligation to resolutely and fearlessly defend your client, particularly but not limited to a criminal case," Cherniak tells Legal Feeds.

"It's a roadmap for future cases and I think anyone from the criminal bar will say they are very, very heartened by what Justice Moldaver said and by the result in the case and analysis that any future discipline panel, really anywhere in the country, is going to have to make," adds Cherniak.

Although the SCC majority took no issue with the appeal panel’s approach to incivility — in particular, when a lawyer’s courtroom conduct warrants a finding of professional misconduct — it says the panel “unreasonably found Mr. Groia guilty of professional misconduct,” awarding costs to Groia in this matter, the courts below and for the proceedings before the law society.

“… Because the Appeal Panel accepted that the allegations were made in good faith, it was not reasonably open for it to find Mr. Groia guilty of professional misconduct based on what he said. The Appeal Panel also failed to account for the evolving abuse of process law, the trial judge’s reaction to Mr. Groia’s behaviour, and Mr. Groia’s response — all factors which suggest Mr. Groia’s behaviour was not worthy of professional discipline on account of incivility. The finding of professional misconduct against him was therefore unreasonable,” said Moldaver.

“The question for incivility purposes is not whether [Groia] was right or wrong on the law; rather, the question is whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation. In this case, they did. [Groia’s] legal errors, coupled with the OSC prosecutors’ conduct, provided the reasonable basis for his allegations. Accordingly, based on the Appeal Panel’s own approach, [Groia’s] allegations were made in good faith and they were reasonably based,” says the decision.

“They found that if you have that good faith honest belief in your submissions then you don’t have to be right in law, it’s just got to be reasonably based on your understanding of the law or even the facts, as long as it’s good faith. If that’s the case, you cannot be convicted of professional misconduct,” Cherniak tells AdvocateDaily.com.

One submission that Cherniak argued strongly at all levels of court but did not win at the SCC concerned the law society’s role in reviewing in-court behaviour and the constitutional imperative of independence of the judiciary — especially in cases where the judge doesn’t criticize, cite for contempt or refer a lawyer to the law society.

“What’s in it for the law societies all across the country is that their jurisdiction over lawyers’ conduct, including in-court lawyers’ conduct, is maintained and confirmed, but they have to take the fact that it is in-court conduct, and the judge’s reaction to it, into account as one of the many factors that will go into how you evaluate whether there was an honest belief in what was said and whether there was a reasonable basis for it," he says.

“So, it’s a factor, but that’s a significant holding for law societies across the country, because it confirms their jurisdiction over lawyers’ conduct in court, or not in court.”

Ultimately, Cherniak notes, lawyers don’t always have to believe that their clients are right, they just have to believe that they have an arguable case.

“I’ve had lots of cases where my clients might have been either right or wrong but I thought they had an arguable case and I was prepared to make the argument for it,” he says.

In Groia’s case, however, he adds: “There was never any doubt in my mind — I thought he was hard done by, by the law society. I thought they should not have charged him in the first place. I thought that the prosecution should never have been brought, that it was misplaced. I thought that the first law society panel that convicted him — I thought the reasons were a disgrace and completely wrong and although the reasons of the appeal panel and the courts going up were reasoned and certainly had much more merit than the first panel’s reasons, I thought they were wrong.

“I was delighted to be involved in the appeal for Joe and for the profession. Certainly, I don’t rank my cases, but Joe’s would be among the most rewarding," says Cherniak.

“Joe’s case was not about money. It was never about money, it’s about real, important issues, as to how, in Joe’s case, a criminal lawyer defends a very serious and high-profile criminal trial, but the result of this case will apply to every courtroom — it happens in every courtroom, not just the high-profile trials," says Cherniak.

"That’s one aspect that makes this case stand out in the practice of a lawyer like me. I’ve had other cases like that — I acted for the Red Cross in the blood inquiry and that wasn’t about money — that was about real, important public issues so it’s that kind of case that makes the practice memorable, worthwhile and interesting."

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