Revisiting Civility after Groia
Author | Duncan Melville |
Position | CFA is a JD candidate at the University of Toronto, Faculty of Law |
Pages | 99-107 |
APPEALVOLUME 21
n
99
ARTICLE
REVISITING CIVILITY AFTER GROIA
Duncan Melville*
CITED: (2016) 21 Appeal 99
INTRODUCTION
“Every counsel has a dut y to his client fearlessly to raise e very issue, advance
every argument, and ask every question, however distasteful, which he
thinks w ill help his client’s case. But, as an ocer of the cour t […] he has an
overriding duty to the cour t, to the standards of his profession, and to the
public, which may and often does le ad to a conict with his client’s wishes.”
— Lord Reid (1967)1
e Rules of Professional Conduct (the “Rules”) requi re practicing lawyers in Ontario to
behave in a civil manner with clients, opposing counsel, the public and the courts.2 An
admirable goal in theory, opponents of the Law Society of Upper Canada’s (“LSUC”)
emphasis of civility focus on two main threads of argument. First, that civility is so
poorly dened to be devoid of meaning. In particular, opponents ask how lawyers can
realistica lly balance their obligation to zea lously defend their client with the duty to act
in a civil manner, and whether these duties can coexist. If so, at what point do lawyers’
actions breach the civility obligations under the Rules? e second thread of argument
is that, even if properly dened , civility adds little value to the profession and ta kes time
away from debates on other more pressing ethical matters—even wasting judicial time
and resources. In contrast, proponents of civility view it as an essential aspect of the
functioning of the leg al system.
e two arguments by cr itics of the civilit y agenda deserve to be revisited in light of the
disciplinary proceedings against Joseph Groia, related to his successful 2007 defence of
former Bre-X ocer John Felderhof.3 Following the 2013 LSUC appeal decision,4 and
the 2015 Ontario Superior Court of Justice decision (“OSCJ Decision”),5 it is now easier
to dene, with precedentia l certainty, when a lawyer’s courtroom behaviour breac hes the
civility obligations under the Rules. While the LSUC has favoured uniformity in the
application of the Rules bet ween solicitors and litigators,6 the cogent arg uments in favour
of requiring litigators to be civil now appear far weaker when applied to the realities of
* Duncan Melville, CFA is a JD candidate at t he University of Toronto, Faculty of Law. Hewishes
to thankProfessor Anita Anand fo r her support on this paper, and encour agement to work on
getting it published . He isalso grateful to the Universit y of Toronto’s Faculty of Law for awarding
an abridged version of this p aper the Nathan Strauss Q.C. Essay Prize in Le gal Ethics.
1 Rondel v Worsely, [1967] 3 WLR 1666 (HL).
2 The Law Society of Upper Canada, Ru les of Professional Conduct, Toronto: Law Socie ty of Upper
Canada, 2000 (amendment s current to September 24, 2015) [LSUC Rules].
3 R v Felderhof, 2007 ONCJ 345, OJ No 2974 [Felderhof].
4 Law Society of Upper Canada v Joseph Groia, 2013 ONSLAP 0041 [LSUC Decision].
6 LSUC Rules, supra note 2.
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