Focus On

REGULATION OF PROFESSION - Law societies and governing bodies - Disciplinary procedure - What constitutes misconduct

Friday, June 01, 2018 @ 12:49 PM  


Lexis Advance® Quicklaw®
Appeal by Groia from a judgment of the Ontario Court of Appeal affirming a decision of the Divisional Court, which affirmed a decision of the Law Society Appeal Panel (Appeal Panel) affirming in part a decision of the Law Society Hearing Panel (Hearing Panel). At issue was whether Groia’s courtroom conduct in a case where his client was charged with Securities Act offences by the Ontario Securities Commission (OSC) warranted a finding of professional misconduct by the Law Society of Upper Canada. The Court had to decide whether the Appeal Panel’s finding of professional misconduct against Groia was reasonable in the circumstances. During the trial in question, much of the disagreement stemmed from Groia’s honest but mistaken understanding of the law of evidence and the role of the prosecutor. Despite the frequency and fervor of the disputes, which included personal attacks and sarcastic outbursts, the trial judge initially adopted a hands-off approach. It was not until the 57th day of trial that the judge directed Groia to stop his repeated allegations of misconduct on the part of the OSC prosecutors. Groia largely followed the trial judge’s directions for the remainder of the trial. Nine years after the trial ended, the Law Society launched an investigation into Groia’s conduct on its own motion; no independent complaint had been filed against him. The Hearing Panel found Groia guilty of professional misconduct. It suspended Groia’s licence to practice law for two months and ordered him to pay nearly $247,000 in costs. Groia appealed the Hearing Panel’s decision to the Appeal Panel. The Appeal Panel reduced Groia’s suspension to one month and decreased the costs award against him to $200,000. The Divisional Court upheld the Appeal Panel’s decision as reasonable. A majority of the Court of Appeal dismissed Groia’s further appeal.

HELD: Appeal allowed. The Appeal Panel’s approach to determining when incivility amounted to professional misconduct and its application of that approach in assessing Groia’s conduct involved an interpretation of the Rules of Professional Conduct enacted under its home statute and the discretionary application of general principles to the facts before it. The Appeal Panel’s decision was thus presumptively reviewed for reasonableness. The fact that the behaviour occurred in a courtroom was an important contextual factor that had to be taken into account when evaluating whether that behaviour amounted to professional misconduct, but it did not impact on the standard of review. The Appeal Panel developed an approach for assessing whether a lawyer’s uncivil behaviour crossed the line into professional misconduct. It appreciated the need to guard against the consequences of incivility and remained sensitive to the lawyer’s duty of resolute advocacy. Its contextual analysis accommodated the diversity of modern legal practice. At the same time, the Appeal Panel articulated a series of factors, what the lawyer said, the manner and frequency in which it was said, and the presiding judge’s reaction to the lawyer’s behaviour, and explained how those factors operated in a way that was sufficiently precise to guide lawyers’ conduct and instruct disciplinary tribunals in future cases. Finally, the Appeal Panel’s approach allowed for a proportionate balancing of lawyers’ expressive rights and the Law Society’s statutory mandate. Even though the Appeal Panel accepted that Groia’s allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous views as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis. Groia’s legal errors, in conjunction with the conduct of OSC prosecutors, formed the reasonable basis upon which his allegations rested. In these circumstances, it was not open to the Appeal Panel to conclude that Groia’s allegations lacked a reasonable basis. And because the Appeal Panel accepted that the allegations were made in good faith, it was not reasonably open for it to find Groia guilty of professional misconduct based on what he had said. The Appeal Panel also failed to account for the evolving abuse of process law, the trial judge’s reaction to Groia’s behaviour, and Groia’s response, all factors which suggested Groia’s behaviour was not worthy of professional discipline on account of incivility. The finding of professional misconduct against him was therefore unreasonable.

Groia v. Law Society of Upper Canada, [2018] S.C.J. No. 27, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., June 1, 2018. Digest No. TLD-May282018012SCC