Being Courteous in Court: It’s not just about being polite

  • November 28, 2018
  • Michael Bernard

The concept of civility in the courtroom seems at first blush a pretty simple one: As a lawyer you have a duty to treat your colleagues on the opposing side with courtesy.

Yet the definition and practice of civility have proved to be anything but simple and straightforward. The recent and seminal case involving the concept – Groia v. Law Society of Upper Canada – has for years wended its way through Canada’s legal system before being considered by the Supreme Court of Canada this year.

Nor has that process been an inexpensive one. By one estimate, legal costs have been almost $7 million, never mind the significant time and energy by the various courts that have jurisdiction over the case.

Just as important, as one legal expert on the subject points out, the law community is only now beginning to appreciate that civility can have a far-reaching and profound impact on many other aspects of the legal system.

A brief summary of a seminal case

In 2000, Toronto lawyer Joseph Groia represented Bre-X mining executive John Felderhof, who was charged with insider trading and other crimes in the stock scandal that saw investors lose millions of dollars. While defending the executive, Groia accused prosecutors for the Ontario Securities Commission, both in personal attacks and sarcastic remarks, of acting wrongly. Following the trial in which Felderhof was acquitted, the Law Society of Upper Canada charged Groia with professional misconduct for his uncivil behaviour and found him guilty in 2009.  An appeal panel upheld that decision in 2013, and Groia was suspended from practice for a month and was ordered to pay $200,000 in costs.

Both the Ontario Divisional Court and Court of Appeal subsequently upheld the Law Society’s decision. This past June, however, the Supreme Court of Canada ruled in Groia’s favour, finding that the Law Society’s decision to punish Groia was unreasonable. That decision has been seen as one about determining at what point strong courtroom advocacy becomes incivility and when incivility becomes professional misconduct.

While Groia actually misunderstood the law in accusing the prosecutors of misconduct, he nonetheless had a reasonable basis for making the accusations, said Justice Michael Moldaver writing for the majority. The Justice also said he was concerned the Law Society’s decision would make lawyers think twice about forcefully defending their clients, for fear they could be accused of misconduct.

The Canadian Bar Association, which had intervened in the appeal to the country’s highest court, argued that a test for incivility amounting to professional misconduct should properly balance three values of fundamental importance to our court system: the value of courtroom civility, the independence of the judiciary, and the right of litigants to fearless and zealous representation.

In a statement on the decision, the organization said it was pleased, “as it underlines the importance of both civility and resolute advocacy in the administration of justice. The Court also gave weight to the presiding judge’s reaction to the lawyer’s impugned conduct as a factor to consider when a law society panel assesses a lawyer’s conduct in a courtroom setting.”

Where do you draw the line on civility?

Lawrence Conmigo, chair of the OBA’s Insurance Law Section Executive, says several legal issues have emerged from the case. Those include: whether it is the Law Society or the courtroom judge that is best positioned to determine whether a counsel’s incivility constitutes professional misconduct; the issue of the independence of the judiciary; the conflict between counsel’s vigorous advocacy of a client’s case and the counsel’s duty to civility; and the far-reaching impact of incivility on the administration of justice.

 “The most important thing about the case is where do you draw the line between the responsibility of the judiciary in controlling conduct the courtroom and the Law Society’s responsibility of oversight amongst its members?

“In this case, (the Law Society) seemed to have had a fairly selective reading of the (trial) transcript, because if they had conducted a thorough review, they would have seen that the (OSC) prosecutors were guilty of the same incivility of which they were accusing Groia. They all made those remarks, like calling Groia a ‘bomb thrower’ and accusing him of telling bald-face lies.”

The far-reaching implications

But Conmigo was also critical of Groia, whom he says would wrongly compare the legal profession to business or politics, where civility is not a fundamental concern. He adds that a constant in the profession is that the obligations of a lawyer are not solely or simply to his or her client but also to the public interest. “The privileges of being a lawyer go hand and glove with the conditions imposed by the profession,” he said. “Civility is not just a prescription to ‘play nice.’ It is a prerequisite in carrying out our responsibilities as officers of the court and in the administration of justice.”

Conmigo, who wrote his thesis on civility for his master’s degree, has continued to pursue his interest in the subject as co-chair of the upcoming OBA program Civility in the Courtroom and Beyond. He and program co-chair Erin Hoult, a member-at-large on the OBA’s Civil Litigation Section Executive, have organized the third annual professional development conference on the topic, Dec. 4 in Toronto, which focuses not only on the issues arising in the Groia case but also on the far-reaching impact civility has on the legal system in general.

For his part, Groia, again one of the annual seminar’s speakers, questions the importance placed on lawyers being civil “when it is not a core value of good lawyering.”

“I believe there is a tension that exists between resolute advocacy, on the one hand, and an undue emphasis on civility on the other,” he said, responding to questions for this article.  “The public interest is engaged in this debate because, among other things, clients are entitled to the faithful discharge of the core duties of loyalty and resolute representation from their lawyers. I readily acknowledge that in most cases the best advocacy and effective persuasion includes a healthy amount of civil discourse. 

“The issue for us to consider, however, is what do you do when confronted with an opponent like, to take an extreme example, Donald Trump? Is the right approach to fight fire with fire?”

Groia went on to suggest that there must be “a level playing field” and that the judiciary and the prosecution must also be held to account. “I believe that professional incivility by judges and prosecutors is more harmful to the public interest than is uncivil behaviour in the defence bar.”

Conmigo argues that being civil doesn’t hinder lawyers in their jobs or make it impossible to be an assertive advocate for a client. If anything, civility actually promotes a client’s best interest when both counsel on a case can have a respectful disagreement but take on the legal issues in court. He adds that when counsel focus on personality issues rather than legal ones, the animosity grows, and, with it, the time it takes to adjudicate the case. That, in turn, can clog the court system with the client ultimately being worst hurt by incivility.

Conmigo says the seminar’s subject matter also reflects the importance of civility and the law in more general terms. In addition to having Ontario Chief Justice George Strathy lead a discussion on courtroom civility, there will also be speakers talking about #MeToo litigation and when lawyers behave badly, and the issue of the importance of immediate disclosure in litigation, among other topics.

“Our primary goal is to start a conversation,” said Conmigo. “People were talking about it in private but not really in public because it is too controversial. Our goal is to have this out in the open. That’s why we invited academics and judges and lawyers to talk about this whole incivility issue and whether there is something we can do about it.”