Supreme Court agrees to hear misconduct case of ‘uncivil’ Bre-X lawyer

Supreme Court to hear case of 'uncivil' lawyer

TORONTO — The Supreme Court of Canada agreed Thursday to weigh in on an epic battle that could affect how lawyers across the country defend their clients.

The decision comes in the case of Joe Groia, a prominent Toronto-based securities lawyer, who was found to have breached the rules for civil behaviour during his aggressive but successful defence of a man charged in the 1990s billion-dollar Bre-X mining fiasco.

The 10-year fight, which has pitted Groia against the organization that regulates lawyers in Ontario and has already swallowed millions in legal fees, was the subject of a split finding by the province’s top court last year that his courtroom conduct was out of line.

“The public interest is not well served when lawyers have to look over their shoulders in a trial,” Groia told The Canadian Press after learning he had been granted leave to appeal.

“I will not be upset if I lose in the Supreme Court but they make it very clear that lawyers deserve to be protected when they’re representing their clients in open court.”

Groia attracted the negative attention of the Law Society of Upper Canada during his successful defence of the only person charged in the history-making Bre-X securities scandal. The society, finding he had breached civility rules, at one point suspended him for two months and ordered him to pay $247,000 in costs — later reduced to one month suspension and $200,000.

Among other things, the society’s disciplinary panel faulted him for repeatedly slagging the prosecution. It also cited critical comments judges made during the labyrinthine, high-stakes fraud trial against his client, Bre-X vice-president John Felderhof.

Records show one judge said Groia was prone to “petulant invective” and “rhetorical excess and sarcasm,” while another said he engaged in “guerilla theatre.”

Nevertheless, no judge sanctioned him for his conduct and no one formally complained to the law society, which only began disciplinary proceedings years after the fact, Groia said.

Groia, who insists he only did what he had to do defending his client against a no-holds-barred prosecution, maintains the law society should only discipline lawyers for uncivil courtroom conduct in the rarest of cases. Doing otherwise would put on chill on the profession and usurps the role of judges to control the proceedings, he argues. 

In its decision last June, however, the Ontario Court of Appeal sided with the law society, noting that professionalism — whether inside or outside court — demands “courtesy, civility and good faith” as well as zealous advocacy.

“An advocate’s duty to his or her client does not permit the advocate to act unprofessionally,” Justice Eleanor Cronk wrote for the majority.

In a lengthy dissenting opinion, Justice David Brown faulted the law society appeal panel, noting the trial judge never took the lawyer to task for his choice of language.

“The law society will be interested to hear the views of the Supreme Court on this matter,” a spokeswoman said. 

About 10 organizations — including various defence lawyer and other legal and civil-rights groups — intervened in the Ontario appeal and Groia said that number could grow by the time the Supreme Court is hears the case, likely in the fall. 

“These are important issues that affect the profession and also all of the public who need to use lawyers to defend them in court,” Groia said.

Investors lost billions when Canadian-based Bre-X collapsed in 1997 after claims of an Indonesian gold find turned out to be bogus.

Colin Perkel, The Canadian Press

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