Who Should Control a Lawyer’s Courtroom Behaviour?

The Supreme Court decision on defence lawyer Joe Groia's behaviour will have a significant impact on lawyers and judicial independence

On Monday, the Supreme Court of Canada will hear a case that will determine who gets to regulate a lawyer’s courtroom behaviour, which has important implications for our justice system.

At the centre of the storm is a Toronto litigator named Joe Groia, who has been convicted of being “rude” — that is, in engaging in uncivil courtroom conduct — by the Law Society, the body that regulates Ontario lawyers. As a result of his conviction, Joe has been sentenced to a one month suspension and a fine of $200,000, which he will only have to serve and pay if he loses at the Supreme Court.

The case plays out the final chapter of the decades-long saga of the greatest mining scandal in history, which involved Bre-X, a Calgary-based public company. Bre-X owned Indonesian lands thought to hold $6 billion in gold before the company imploded in 1997 when the claim turned out to be false.

In the wake of Bre-X’s stock collapse, civil lawsuits and criminal investigations were launched all around the world. Groia was hired to defend John Felderhof, one of Bre-X’s directors and senior officers who was charged with fraudulently trading in Bre-X stock.

One of the strangest aspects of the case is that Groia is the only person ever convicted of anything. Stranger still: Groia won a full acquittal for his client Felderhof.

What did Groia do that was so bad during the Felderhof trial? With the public howling for the head of his client, Groia fought hard and used every legal means available to protect his client’s rights. During the trial, the judge cautioned Groia for some his courtroom tactics, including accusing government prosecutors of misconduct. The judge also corrected the prosecutors. Both sides complied with the judge’s direction.

Then the trial took a strange turn. The prosecutors halted the proceedings and accused the judge of being biased against the prosecution. The prosecutors were denied by other independent judges in all of their efforts to have the trial judge removed from the bench.

Then things got even weirder once the trial was over. Although there was no complaint by the public, the trial judge, the prosecutors, trial witnesses or any clients, the Law Society self-initiated an investigation and then pursued charges against Groia for his courtroom conduct.

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The Law Society sanctioned Groia after he was found by a hearing panel of his fellow lawyers to have displayed a “consistent pattern of rude, improper or disruptive conduct.” His conviction was upheld by a Law Society appeal panel as well as the Divisional Court and the majority of the Ontario Court of Appeal, which characterized Joe’s conduct as “unprofessional” and “extreme.”

In his dissent, however, Ontario Court of Appeal Justice David Brown identified the main problem with the case against Groia: this lawyer should go free because he complied with the trial judge’s directions. In Justice Brown’s view, the decision to sanction Groia unduly interferes with judicial independence.

Our justice system is set up to protect judges from improper outside influences. These judges are kept separate from other branches of government as well as regulators like the Law Society.

The fact that the Law Society stepped in to sanction Groia will have a broad and insidious chilling effect on how Canadian lawyers defend client interests in the courtroom — and will be particularly damaging in criminal matters.

Most lawyers would agree that polite and civil courtroom behaviour should be the norm. But sometimes litigation devolves into brutal combat, especially when a client’s liberty is at stake against the enormous resources of the state. Only a trial judge is close enough to the action to discipline lawyers for their behaviour.

By usurping a judge’s authority to regulate courtroom behaviour, the Law Society tarnished the reputation of the judiciary and harmed our system of justice.

Arthur Cockfield is a professor with Queen’s University Faculty of Law. He is the author of Introduction to Legal Ethics.

Are you a Person of “GOOD MORAL CHARACTER” ?

Take The Washington State Bar Examination and see for your self, Just for your own personal information see below some of the people that the Washington State Bar and it’s Board of Governor’s found to have “GOOD MORAL CHARACTER”.

Mr. Clark Garen was denied (Admission) because he did not have good moral character because he did not pay property taxes on two pieces of property that he owned, and was found because of this not to process “GOOD MORAL CHARACTER.”

SANDERS, J. (dissenting)—
[most of this information, is provided/ found in pages 18, and 19 of the dissent. Total of 44 pages for the dissent and seven pages from “OPINION OF THE CHARACTER AND FITNESS COMMITTEE” for a total of 51 pages.]

In re Clark Garen, Bar Applicant
B.A. Number 61 Dissent by Sanders, J., Denial of Application to Practice Law

In the case of Mr. Wright, for example, the court concluded “second degree murder does not exhibit good moral character.” In re Wright, 102 Wn.2d at 859. By the same token, prior engagement in criminal enterprise may also point to bad moral character. Cf. In re Belsher , 102 Wn.2d. At 851-52. Even so, we have admitted or readmitted others to practice notwithstanding prior criminal conduct when rehabilitation is demonstrated. Let us weigh the claims of the Bar by the standard we have set for ourselves in prior proceedings.

We have reinstated attorneys who have committed serious illegal and/or immoral acts including: second-degree assault (In re McGrath, 112 Wn.2d 481, 482, 772 P.2d 502 (1989));

Footnote:1
Dennis Belsher, for example, blew up his parents’ car with a home-made bomb, although his parents miraculously escaped injury. Nevertheless, the Board of Governors found Mr. Belsher fit to practice law in this State, although ultimately this court turned aside the favorable recommendation, concluding it was not in the interest of the public or the Bar to admit Mr. Belsher to practice “at this time.” End of Footnote:1

misappropriation of client funds (In re Moynihan, 113 Wn.2d 219, 220, 778 P.2d 521 (1989); In re Rosellini, 108 Wn.2d 350, 355, 739 P.2d 658 (1987); In re Chantry, 84 Wn.2d 153, 154, 524 P.2d 909 (1974)); witness tampering (In re Stroh, 108 Wn.2d 410, 41, 739 P.2d 690 (1987); In re Shain, 24 Wn.2d 598, 166 P.2d 843 (1946)); lying to a client (In re Livesey, 94 Wn.2d 251,252, 615 P.2d 1294 (1980)); possession of bank robbery proceeds (In re Egger, 93 Wn.2d 706, 707, 611 P.2d 1260 (1980)); burglary (In re Krogh, 93 Wn.2d 504, 505, 610 P.2d 1319 (1980)); grand larceny (In re Johnson, 92 Wn.2d 349, 350, 597 P.2d 113 (1979)); assault with intent to commit rape (In re Simmons, 81 Wn.2d 43, 44, 499 P.2d 874 (1972)); fraud (In re Eddleman, 79 Wn.2d 725, 489 P.2d 174 (1971)); mail fraud (In re Lonergan, 23 Wn.2d 767, 767, 162 P.2d 289 (1945)); embezzlement (In re Lillions, 196 Wash. 272, 82 P.2d 571 (1938)); and having an affair with a juror in a cause in which the attorney was counsel (In re Bruener, 178 Wash. 165, 34 P.2d 437 (1934).

Moreover, regarding just the last seven initial applicants for admission considered by this court, we have granted admission to applicants who have: sold seven ounces each of cocaine and heroin (Bar Applicant No. 60); conspired to import and distribute marijuana and transported $250,000 to another country (Bar Applicant No. 59); engaged in vehicle tampering and shoplifting (Bar Applicant No. 58); sold over a pound of cocaine to undercover officers for $30,500 in addition to possessing over a half-a-pound of cocaine (Bar Applicant No.57); furnished alcohol to a minor, delivered a controlled substance to a minor, and committed third degree sodomy with a 14-year-old girl (Bar Applicant No.56); broke into a liquor store, burglarized a home, stole payroll checks, and drove under the influence (Bar Applicant No.55); and possessed marijuana and attempted to commit fraud (Bar Applicant No.54);

In re Clark Garen, Bar Applicant
B.A. Number 61 did make a motion to {Washington Supreme Court} have this decision to be a "published decision," they (the Wa. Sup. Ct.) denied the motion, hence, the above is from a "NON-Published Decision." Justice Sanders was the only yes vote to Publish.

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