Uncivil law

One of those clients was John Felderhof. Few people could have gotten themselves into worse trouble with the OSC than Felderhof, who earned worldwide fame as geologist for Bre-X Minerals Ltd. Final submissions have yet to be heard in the marathon OSC trial of Felderhof for alleged securities violations in connection with an alleged gold mine. But R. v. Felderhof has already become a legal landmark after court hearings in 2002 and 2003 resulted in an unsuccessful attempt by OSC lawyers to get the trial judge removed, largely on the grounds he failed to control the uncivil behaviour of Groia, who was acting in Felderhof’s defence.

The judicial review and subsequent appeal in the Felderhof case came at a time when the legal profession was doing a great deal of soul-searching on the issue of incivility. Concerns had been raised by different legal organizations about a large number of complaints involving incivility and these concerns prompted various task forces and investigations.

In Ontario, The Advocates’ Society compiled a 16-page set of guidelines, Principles of Civility for Advocates. There were calls for law schools to do a better job of teaching courteous conduct and for law firms to provide better mentoring. Judges and leaders in the legal profession pleaded with their peers to reign in their tempers, hold their tongues and restore the sense of collegiality and dignity that the legal profession has long prided itself on possessing.

Now, three years later, people are beginning to wonder whether anyone was listening. Family court lawyers are still complaining about clients being bullied and berated by opposing counsel. The consensus among litigators is that lawyers generally manage to keep the lid on any proclivity to incivility in open court, but the mask comes off in pre-trial discoveries when the judge isn’t watching.

The Barreau du Québec is the latest law society to raise concerns that incivility may be at the root of an increase in complaints about lawyers from the public. And the saga of the Brampton courthouse
is reminding everyone that the issue has not gone away, while suggesting that — as some people have long suspected — even judges are not immune from the plague of incivility.

 The discussion inevitably comes back to Groia, who laments he has already paid and will continue to pay a huge cost for representing Felderhof no matter how the Bre-X case eventually ends. “My career will have been significantly damaged because, whenever anyone wants to argue that a lawyer’s been uncivil, they will rely on Felderhof,” he says. “And I’m the lawyer in Felderhof who gets criticized and there’s not anything that I can do about that.”

As Groia regretfully acknowledges, the discussions and rulings on incivility that are reported in Felderhof provide a great deal of insight into this ongoing debate, since they ultimately raise questions about how far lawyers should be prepared to go in offending opposing counsel as they defend their clients’ interests, what kind of behaviour should be sanctioned and what should be done about lawyers who allegedly go too far.

After all that has been said and written about incivility in the Felderhof case, it comes as something of a surprise to find Groia courteous, even-tempered and apparently fair-minded in discussing this issue. Of course, he is on his best behaviour for a magazine interview. And he readily admits that he has been chastened and more restrained, sometimes, in his choice of words as a result of his experience. “You can’t go through that process and have senior and well-respected judges criticizing your conduct in the strong language they have and not be affected by it.”

Nevertheless, there is a case to be made that Groia’s supposed incivility was not really as bad as it appeared from some of the comments made by judges and other lawyers. And, in examining this case, one can begin to deconstruct the whole notion of incivility to see what the real concerns are for the legal profession.

The judicial review and subsequent appeal in Felderhof arose largely out of a long and acrimonious wrangle over the production of documents at the trial. Groia insisted that the OSC prosecutors were not being fair and assailed them with a barrage of arguments as the trial slowly progressed through its first 70 days.

Proceedings were halted when the OSC made an application to remove the presiding judge, Peter Hryn, on the grounds that he had made errors in directing the prosecution’s presentation of evidence and had failed to “restrain uncivil conduct by defence counsel thus producing an unfair trial and creating a reasonable apprehension of bias in the judge.” Justice Archie Campbell, who conducted the judicial review, strongly criticized Groia’s conduct in the trial, but suggested “prosecutors need thick skins” and found that the judge was not at fault in his handling of the case.

The Crown appealed Justice Campbell’s judgment and the Ontario Court of Appeal upheld the decision to allow Justice Hryn to continue hearing the case. However, in a written decision on behalf of the court, Justice Marc Rosenberg rejected a motion from Groia for costs on the grounds that his conduct, which triggered the application for review and subsequent appeal, was “appallingly unrestrained and on occasion unprofessional.” The judge elaborated by stating it seemed unlikely the application would have been brought but for Groia’s “inappropriate conduct”:

“The application, although novel and unsuccessful, was reasonable in light of the nature and quality of that conduct. It was necessary to review the record extensively before it became clear that his extreme conduct did not deprive the court of jurisdiction. To award costs to the defence in this case would be unfair to the prosecution and contrary to the public interest in the administration of justice. The behaviour indulged in by Mr. Groia should be discouraged, not encouraged by an award of costs. To award costs to the defence would carry the wrong message by rewarding him for the consequences of his unacceptable conduct.”

Groia says he continues to pay the costs in terms of the damage that has been done to his reputation. “When I took on this case, I knew it was going to be very long, difficult and emotionally draining. I was taking on the representation of someone whom everyone had tried and convicted in the press and who was being treated as an outcast and a pariah. I knew that there would be a cost to pay, but I never dreamed it would be as substantial a cost as the one that I have paid and will continue to pay.”

However, he adds, “If people start to think about what happened to me and how it came about, they may look at the record and see some real issues here.”
The judgment left Groia in the strange position of appearing to be a loser in a proceeding that he had actually won. It is a problem inherent in the legal profession’s concept of civility, he says. If he had been accused of being disrespectful to the court, it could have resulted in a charge of contempt of court, in which he could have defended himself head on. Likewise, he could have defended himself, if complaints about his conduct had been brought to a law society, which is a way he believes such situations could be handled more appropriately.
However, the allegation that he was uncivil to other lawyers resulted in a situation where he could not properly defend himself, because he was not the defendant in the action before the court. His hands were tied, because he had to represent the interests of his client in defeating the prosecution’s motion, which he succeeded in doing.

The Felderhof case also raised and partially answered the question of what constitutes incivility in the legal profession. Groia suggests that the courts’ findings may have set the bar impossibly high. Without looking at the record, one could be forgiven for assuming, on the basis of the court’s strong denunciations and the way they were subsequently reported in the media, that Groia had behaved in a thoroughly uncivilized way, perhaps using the f-word or, at least, some evocative b-words in court. However, the standards of civility recognized in the legal profession are as far away from those normally followed on the street as a baseball brawl is from a hockey fight. In fact, there was nothing that a member of the public would likely consider offensive in the language Groia used in court.

According to Justice Campbell, where Groia “tested the limits of civility” was in his “rhetorical excess” and the tone of his submissions that “descended from legal argument to irony to sarcasm to petulant invective.” For example, Groia criticized the prosecution by saying, “their promises aren’t worth the transcript paper they are written on.” At one point in complaining about the production of documents in the case, he said, “Somebody needs to tell us we got everything and it’s just not right, in my submission, for the Securities Commission to say we’re too lazy, we’re too busy, we’ve got better things to do than go through the material to try to fix the mess that we have created.”

Justice Campbell observed that “neither side in this case has any monopoly over incivility or rhetorical excess,” citing as an example a prosecution counsel’s characterization of one of Groia’s submissions as “a bald-faced lie.” However, the judge noted that Groia had repeatedly attacked the prosecutors throughout the trial. In quoting several examples, Justice Campbell went on to say, “They do not adequately convey the personally biting effect of Mr. Groia’s unrestrained repetition of his sarcastic attacks.”

Groia maintains that he attacked the OSC lawyers because he believed they were being unreasonable and unfair to his client. He says his rhetorical questions and comments were a perfectly legitimate way of drawing attention to issues that he felt would put his client at a disadvantage. If his conduct, as recorded in the Felderhof case, is now the threshold of incivility, he says, “I dare say there is not a day that goes by in a courtroom in Canada where most lawyers are not acting in a manner that is not uncivil.”

While many members of the legal profession maintain that the Felderhof case has had a salutary effect and that civility standards have improved in the past few years, concerns about badly behaved lawyers are still rampant, particularly in big cities where relative anonymity seems to give some people a licence to be rude. Ontario Superior Court of Justice Colin Campbell, who was chair of the Task Force on the Discovery Process in Ontario, notes that lawyers in smaller communities generally get along, while in larger centres “you get the kind of aggression that can be exacerbated when you don’t know the person on the other side and you don’t have to appear before the same judge regularly.”

David Scott of Borden Ladner Gervais LLP, who appeared for the Crown in the Felderhof appeal, says incivility is most commonly encountered today in pre-trial discoveries or arbitrations — settings that are not monitored by the judiciary. Part of the problem, he says, is that relatively few trials and “discovery battles” provide aggressively inclined lawyers with their only opportunity for “venting.”

“A lot has happened by way of improvement, but because of the adversarial nature of the process civility does not go away just because we talk about it,” says Scott. It is something that should concern everyone, he adds, “because, if people are barking at each other, that barking is accompanied by adopted positions like, ‘I’m not going to give you this’ and that leads to motions and judicial assessments of what’s gone on.”

“Civility and professionalism tend to move the process along, whereas incivility and unwanted aggression tends to get the process off the rails into side issues which are unproductive. I’ve never been involved in a hard-fought lawsuit, where there is a lot of incivility, where it wasn’t prolonged and made more expensive,” Scott adds.

Incivility is so rife and so hard to stamp out that Eugene Meehan, chair of the Supreme Court of Canada practice group at Lang Michener LLP, advises young lawyers to adopt civility as a tactical tool in litigation. “Civility is most effective when you are living and working in an uncivil world,” he says. In examinations for discovery, for example, “If you think the other person is being uncivil, it is entirely appropriate to let the record show that and let the record show that you are being civil in response,” he suggests, illustrating his point with an anecdote about another Ottawa lawyer, whose standard response to bullying is to tell the opposing lawyer on the record, “Shouting your responses does not give further weight beyond higher noise. My client and I will take a 10-minute break to allow you to cool down.”

When lawyers get out of line in his court, Justice Campbell reaches for a copy of The Advocates’ Society’s Principles of Civility for Advocates, which he keeps with his bench book and holds it up for them to see. Usually, he says, “That’s all I have to do.”

In courtrooms, as in barrooms and hockey rinks, it takes two to make a fight and Justice Campbell says he keeps his eyes open for the instigators, the lawyers who provoke a conflict by acting unreasonably. It often starts with arguments over costs, he says. “You get one side saying, ‘We want the sun, the moon and the stars on a substantial indemnity basis.’ And they do that in every case. I find it a bit offensive as a judge because they should know that it is only the exceptional cases in which that is going to be done. And this attracts retaliation from the other side, just like the hockey players, and they say, ‘Well it should be nothing, because they’re lying, cheating and falsifying their records.’”

Courtroom wrangles are often exacerbated, he adds, in situations where lawyers have not had enough experience in court — largely because there are fewer trials than there used to be — and have not had the benefit of mentoring, which law firms tend to do less than they used to. “You don’t develop the competence that allows a lot of people to roll with the punches. You don’t have many people with a good bank of trial experience to know in terms of expectations what is important and not important,” Justice Campbell says, noting that inexperienced lawyers sometimes respond almost in a paranoid way to an argument or a remark that should simply be ignored.

The bottom line on civility, for Justice Campbell, is that it’s everybody’s business — including judges. “I know that the bar has a legitimate concern in a number of instances about what they regard as incivility from the bench. I have no doubt that occurs from time to time. I’m sure I do things once in a while that on reflection I wouldn’t have done,” he says.

Joseph Groia’s experience has certainly taught him a lesson about incivility. Since the Felderhof appeal, he says, “I’ve been a little bit more careful in how I go about responding to things and I’m much less willing than, perhaps, I was before to take the bait, so to speak.”

But he is also aware of the risk of going too far in trying to avoid incivility. “I have been much more guarded in my language, but I am confident in my own mind that I’ve not been one bit less zealous in my representation of clients.”

This concern was encapsulated by Brian Greenspan, of Toronto’s Greenspan Humphrey Lavine, who acted with Groia for Felderhof in the appeal hearing. “It would have a chilling effect on the vigour of defence advocacy, if counsel had to parse their language and self-censor each word to ensure that it was perfectly tailored to the occasion and could give no offence,” he argued.

A factum submitted on Felderhof’s behalf concluded with a quote from the annals of English law suggesting that the much-vaunted tradition of civility in the legal profession has a disreputable kin who also serves the cause of justice.

The quote is from Lord Henry Brougham, speaking in defence of Queen Caroline in the House of Lords in 1820: “An advocate, in the discharge of his duty, knows but one person in all the world and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing that duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”