Apologia for a ‘new’ professionalism in Canadian law

Honour or victory — tracing the origins of the civility movement

Do the tools of our trade include insults and ad hominem arguments? Are we in danger of neutering the litigation bar? Should lawyers follow the “great trial lawyers” or bow to the “civility movement” in Canadian law? Or should they carry on with the time-honoured view of advocacy, as captured by Justice Riddell in his 1915 decision in Dale v. Toronto R.W. Co.: “a jury trial is a fight and not an afternoon tea?”

It is not a new argument. Rather, you have to reach back centuries to see from whence our profession has come. Our proud and independent bar earned its status through self-regulation. Before that time, ur-lawyers were technicians without ethical constraints separate from their employers. Take, for instance, this passage from Shakespeare’s Henry VI, Pt. 2:

Is not this a lamentable thing, that
of the skin of an innocent lamb should be made parchment, that
parchment, being scribbled over, should undo a man?"

Did you identify it? It was, indeed, the lead-in to that famous condemnation of our kind: “The first thing we do, let’s kill all the lawyers.”

Some lawyer apologists have turned this passage into praise for the lawyers’ role in the rule of law. The speech was, in fact, describing an anachronism and not the lawyers of that time. The pre-1066 legal scribes were bureaucrats meting out arbitrary and often mass brutality, in the name of the Crown or the Church. In a time when monarchs struggled to maintain their grip on power while dealing with the rise of the landed class, parchment bearing the king’s seal was an instrument of dictatorship. These scribes were, at best, what I call ur-lawyers — those with skills but not following a distinct professional code.

Real lawyers, by Shakespeare’s time, had developed a fairly sophisticated and quasi-independent bar. True, the ur-lawyers remained powerful. Not only did they draw the King’s death warrants, they also drew the writs shutting down the Bard’s theatres. But the professional bar was taking over, and the power of their integrity was stronger than armies.

Lawyers evolved from the wordsmiths of power to defenders of the “little guy” through two historical currents. Separate from the centralized apparatus of the Crown, the subsidiarity of feudal warlords (knights) had given rise to the adversarial system we have today. The evolution of aristocratic trial by combat loosened the Crown’s grip on law. Feudal aristocrats resolved legal disputes by contest and by war. Codes of chivalry qualified the brutality into the beginnings of constitutional or customary government. However, law was a justifier of boundaries set by fallen soldiers, and not an ideal worth fighting for.

Feudal combatants fought not over their personalities but over the interests they represented. Some knights let their honour, notoriety, or self-regard exceed the bounds of fair conduct. They became bad knights, knights who spoiled for a fight. The good knights’ role was then reduced to protecting their vassals from the bad ones. The stories turned to conflict between good knights and bad ones. You knew trial by combat, as a method of resolving disputes, had outlived its purpose. By the time the contests became the stuff of fairy tales, England was ready for justice that was less semi-barbaric.

It took the Norman conquest of 1066 for the French to introduce the English to the Curia Regis, the precursor to the Royal Courts and Parliament. In order to facilitate access to the courts, judges began to admit professional pleaders. From about 1200 to the Elizabethan era, barristers increased in skill. They developed codes of conduct designed to separate themselves from the state and to encourage confidence in their understanding of court procedures.

It was during this remarkable time, we saw the rise of the Inns of Court and the English common law. The latter was to be a system of law derived, not from royal decree, but from the minds of lawyers and judges. The worlds of the ur-lawyers and the professional lawyers often collided, as we saw in the life of St. Thomas More, as depicted in Bolt’s popular play A Man for All Seasons.

After the American Revolution, we saw the birth of the role of the lawyer as the hero of the adversarial system. Instead of being functionaries providing technical access to courts, lawyers were now passionate advocates of separate points of view. From Victorian times to the 20th century, common law lawyers developed the idea law was important even beyond the disputes of the parties. They also began to bring down the simplistic Austinian theory of law as the command of the sovereign backed by the threat of punishment, the raison d’être of the ur-lawyer. All of this, made possible by a common belief in respect, self-restraint, and service to a higher cause.

But like the fairy tale knights before them, some highly skilled lawyers went a step too far. At the end of the 20th century, they embraced the conceit that the courtroom was an arena to test the limits of their ability to get an accused off a charge, or to win a verdict for their civil litigation client. Their idea of procedural justice cast the trial judge as referee standing between duelling lawyers eager to verbally tear each other apart. The lawyers, not the parties, became the true focus of the judicial model, which bore the name adversarial.

Law, for some, became sport. The satisfaction of defending a party’s rights gave way to the thrill of winning.  What was once high standing in the community gave way to scorn, and comical reprises of the famous quote regarding the death of lawyers.

We are still evolving, and auto-correcting

In the 21st century, Canadian legal regulators are correcting our profession’s urge to turn the courtroom into an arena. What we are witnessing today, in the internecine battle over civility in litigation, is a dialectical contest worthy of Plato’s dialogue on justice in The Republic. At one level, the antagonists struggle over the boundaries of acceptable gladiatorial behaviour in litigation. At another level, it is about the pursuit of true juridical questions ahead of manipulation of process.

Follow the second tier of this argument, if you want to see how this chapter of our profession’s history will — and must — end. Victory or justice: Can we pursue one at the expense of the other, and still call ourselves a good profession?

On one side of the bar, we mark a Gen-X treasurer of the Law Society of Upper Canada who penned the June 28, 2012, judgment against Joe Groia for lawyer incivility. Lined up on the other side is a storied old guard of the Canadian litigation bar and judiciary, including names like Brian Greenspan, Earl Cherniak, Ian Binnie, and Tom Heintzman: “Greenspan testifies at Groia hearing,” Aug. 18, 2011; “LSUC sends ‘unhappy message’ with Groia ruling,” June 29, 2012; and “Trial judges better suited to regulating civility,” Dec. 17, 2012.

We as a profession must take a hard look at the effects of the trial-as-fight behaviour on the courts’ ability to dish out justice. Clients are fed up with lawyer antics. Members of the public are choosing to represent themselves in droves. It is driving women out of private practice. The legal landscape resembles an Elizabethan stage after a lot of gunpowder and shouting.

Strong legal personalities want minimal, localized supervision of the tactical (albeit bloodless) violence of their trade, in order to maximize the chances of winning for their clients. Conversely, the lawyers’ regulator, defending the public interest under s. 4.2 of the Law Society Act, wants to curb such behaviour institutionally, to maximize each party’s access to justice.

Whom do you follow, the armers or the disarmers?

New lawyers, and those beginning to hit their stride, are bound to be confused. Does one model oneself after some of the great names in Canadian law, or does one toe the law society line? Lawyers tend to be independent spirits, but they are also an inherently conservative, rule-abiding lot. With the stars of the litigation bar lined up against the regulator, does the lawyer let out his or her “inner bully” or keep it locked up? Canada’s greatest lawyer, J.J. Robinette, was also a master of intimidation. Why lionize him, and condemn his methods?

I confess the historical overview at the beginning of this column looks at the origins of the modern bar through rose-tinted glasses. Nevertheless, the rise of the independent bar comes not from our skill in getting people off police charges (quite the contrary), but from our refusal to bend our rules of conduct to expand the limits of our skill. True independence and effectiveness are privileges we earned through assiduous self-control. To say we should unbridle ourselves and treat trial judges like schoolyard monitors is an attitude worthy of condemnation by characters in a Shakespearean play.

What we are witnessing is not a civility movement. Rather, the self-regulation of unfair and uncivil conduct is a tradition centuries older than the “war stories” of some senior litigators.

The best advice to new lawyers is this: learn from the greats, but do not become them. They are, or were, truly great — in their time. We can and do learn from the great courtroom warriors that trial courts are places where messy things happen. Sometimes sharp instruments get waved around. Sometimes blunt ones find unintended landing places. Undoubtedly, judges must control their courtrooms.

However, the modern judge is hardwired to project an image of impartiality. If one or both counsel appearing in a criminal or civil trial seeks to get under the other’s skin, the policing role of judges interferes with their truth-seeking role. Kids tugging hard at their parents and yelling to be heard also bear an unrealistic expectation of “judicial” multitasking. Judges, like good parents, seek first to hear each party’s take on a particular dispute through the smoke of counsel trading shots.

In the Groia panel’s decision, the LSUC curbed the litigator’s tactic of battling an opponent’s person, as opposed to the opponent’s argument. At the heart of the decision is recognition of the flawed rhetoric of ad hominem arguments as a dark force in our legal process. What struck the panel as uncivil in the lawyer’s conduct was not the lawyer’s use of insults, in the schoolyard sense. Rather, it was the way in which he turned the tables on his opponent and transformed the case into a trial about alleged prosecutorial misconduct. It was a brilliant tactic, in terms of effectiveness. The LSUC hearing panel was brave to sanction the lawyer when the trial judge had not, but perhaps it saw what the trial judge had not:

In his submissions, Mr. Groia started using the words ‘Crown’ and ‘Government’ interchangeably and continued his accusations of improper prosecutorial conduct. In our view, Mr. Groia’s repeated use of the term “Government” to describe the OSC’s lawyers, coupled with the obvious sarcasm with which he delivered his submissions, fell below the standard of professional conduct required of a lawyer before the Court and was inconsistent with the proper tone of professional communication from a lawyer."

One has to see the vocal opposition to the profession’s civility movement as a “boys-will-be-boys” justification. Lawyers using calculated personal attacks to tip the scales of justice are no better than high-street merchants who fiddle with the weights and measures of their fruits and vegetables. Lawyers starting out in law and emulating the ad hominem approach to the litigation process will find themselves up against a different professionalism than the one that has served lawyers in the past. The death warrant for this school of thought was signed long ago, in the commentary to 4.01 of the Ontario Rules of Professional Conduct:

Maintaining dignity, decorum, and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.”

It doesn’t mean you can’t be tough. It doesn’t mean you have to make unwarranted concessions. It means you have to honour the lawyers who earned the privileges you enjoy. It means you have to honour the colleagues you battle with, in and out of the courtroom.