This month’s cover story looks at the thorny issue of how discipline is doled out in the profession. There will continue to be disagreement over whether certain members of the bar are treated differently than others, but it is fairly undisputable that small firm and sole practitioners end up in the crosshairs of regulators more often than big firm, government, or in-house lawyers. One of the most controversial discipline proceedings in recent memory is that of the Law Society of Upper Canada’s prosecution of Joseph Groia for incivility, the details of which are covered in the article “Discipline dichotomy.”
In early December, members of the bar held a panel discussion focusing on Groia’s discipline odyssey and the issue of the future of zealous advocacy in Canada. The panel sported some heavy hitters: former Supreme Court of Canada justice Ian Binnie, well-known criminal defence lawyer David Humphrey, veteran litigator Tom Heintzman, and law professor Alice Woolley, who probably knows more about professional regulation of lawyers in Canada than anyone else. I came away with two main points, although many more came up:
• Judges, not law societies, should be the primary arbiter on procedure and civility in the courtroom.
• What exactly constitutes civility is very much a grey area, which makes it practically impossible to model one’s behaviour on.
On the first point, every litigator, including the large audience of senior members of the bar, would agree that a courtroom is an adversarial place, arguments can get heated, and the most important role of counsel is to advocate, sometimes stridently, for their client. “If there isn’t zealous advocacy, there’s not much future for trials,” said Binnie. He noted that within the courtroom the judge needs to be in control, and if things become “uncivil,” it’s the judge’s role to rein it in. And if the judge cannot, that is a problem with the training and/or appointment process of judges. “It’s very hard after the fact for someone to come and judge the behaviour of those in the courtroom,” he said.
Wooley made an excellent point when she said these “regulatory scoldings” for incivility — that are coming from the law societies in Ontario and British Columbia the most frequently — are too subjective and often don’t take into account or completely disregard the fact there may be actual underlying professional misconduct that’s more important to address. “The issue is that law societies talk about rudeness and not the underlying conduct, so you don’t get to the heart of ethical duties,” she said. Not to mention that incivility is totally subjective, “sort of an old-fashioned conservative view of what we think a lawyer should do. Law societies are legislating a higher class of insult.”
It was quite clear from the panel and members of the profession in attendance that civility in the courtroom, while important, should not be something judged by law societies, outside the courtroom, and after the fact. Hard to argue with that.
