Of all lab chimps likely to prove the effectiveness of general deterrence, lawyers are the most promising. We pay attention to rules laid down by our regulator and the courts. If the regulator is sweeping the civility broom more vigorously, lawyers will listen. If the courts prefer professional dignity to free speech, lawyers will fall in line.
Both of these things are happening. But there is a growing debate on whether this is a good development.
Two recent judgments fueled the debate and blurred the line between professional and unprofessional behaviour. In Law Society of Upper Canada v. Groia, LSUC evaluated defence counsel`s conduct during a lengthy criminal trial. In Doré v. Barreau du Quebec, the Supreme Court of Canada ruled on the professionalism of lawyers’ criticism of public institutions.
Civility at trial
An LSUC disciplinary panel held that lawyer Joe Groia’s disputes with a prosecuting lawyer during a trial violated the principle of civility. It found Groia guilty of professional misconduct.
While monitoring civility is a crucial task, the Law Society’s intervention in the Groia case has made many defence counsel wary. No one likes spats in the courtroom: they detract from the proceeding, they don’t serve the client and they are irksome to the judge. But there are many reasons why the law society should pause before bringing down its heavy stick.
The world of advocacy is tough. Litigators – especially criminal defence lawyers – are often required to say uncomfortable things or even hurt people’s feelings. It is in the nature of the job that defence counsel must engage in bruising and unpopular sparring. Rules designed to promote civility must acknowledge this.
Increased regulatory intervention undermines the judicial function, particularly if a judge has already ruled on the behaviour and found no ethical violation. Groia illustrates why this is such a tricky area. The trial judge did not criticize Groia’s conduct. On a mid-trial application to Superior Court, Justice Campbell criticized both Groia and the Crown, observing that neither party had a “monopoly over incivility or rhetorical excess.” The Court of Appeal directed its criticism entirely at Groia. When the case returned to the trial judge, it was litigated by Groia and new prosecutors. Again, the trial judge made no findings about Groia’s conduct. If the Court of Appeal’s criticism was sufficient to start Groia’s disciplinary proceeding, why wasn’t the trial judge’s silence sufficient to dispose of it? How does the regulator decide which of the five judges got it right?
Defence lawyers have an unpopular job. To the uneducated eye, we contrast unfavorably with Crown counsel – we do not have a cultural or constitutional obligation to disclose our case, take a balanced position or make decisions in the public interest. We are in fact obligated not to do so. The zealous advocacy that the law demands of the defence bar makes its members easy targets for regulators scrutinizing the conduct of trials. This is not an appeal to abandon standards. It is a request for the regulator to think and act carefully.
Civility outside the courtroom
Is it better to conduct conversations with dignity and restraint or encourage free critique of public institutions? In Doré, the Supreme Court of Canada ruled in favour of the former. The Court held that while counsel have a right and a duty to criticize institutions like the judiciary, they are “constrained by their profession to do so with dignified restraint.”
The primary goal of the Rules of Professional Conduct is public protection. The Rules do not apply to a lawyer’s actions if they are not (a) committed in the context of a professional exercise or (b) linked to her professional function.
Does the Supreme Court’s endorsement of the finding of misconduct in Doré advance this goal? Is there evidence that a crackdown on critiques of the judiciary will protect the public? In Kopyto, the Ontario Court of Appeal recognized that criticism of a judge, even if couched in abusive terms, does not single-handedly reduce public confidence in the judicial system. In Doré, the Court showed less confidence in the public`s ability to distinguish between abusive rhetoric and meritorious critique couched in strong language.
Lawyers who criticize public institutions without sufficient restraint now risk being labelled unprofessional. The potential chilling effect is clear: in trying to avoid this label, they may refrain from criticism altogether. The public is best protected by a judicial system that promotes both civility and free speech. Law societies should take this into consideration before cracking down on Doré’s counterparts.