Tale of a lawyer accused of being a pain in the butt
Law society found Groia guilty of misconduct, but judge didn’t complain
(see also: Groia v. Law Society 2016 ONCA 471 -split decision)
(see also: Supreme Court decision 2018
At this post-Charlie Hebdo moment when outliers, particularly sarcastic ones who delight in giving offence or getting under the collective skin, are enjoying a rare public appreciation, I would like to report upon the ongoing trials and tribulations Thursday of one Joe Groia at the Ontario Divisional Court.
Groia, a famous Canadian securities lawyer and the one who successfully defended John Felderhof — the only person ever charged by the Ontario Securities Commission in the Bre-X gold fraud — is one such outlier, a bull in the china shop that the practice of law from time to time aspires to be.
And, as with the cartoonists slain, it appears, for their relentless mocking of fundamentalist Islam and all that is dear to it ( beheadings, rioting, Shariah law and the like), Groia stands accused of, egad, being uncivil, insensitive, ironic and belittling of the decorum much prized by the profession.
Frankly, I’ve always found it a fraudulent, if not outright flatulent, decorum — all those lawyers praising one another in overheated terms (usually for barely doing their jobs) and the relentless bootlicking directed toward the judge, whoever it is and regardless of how skilled or not he or she may be.
In any case, Groia is in court seeking to overturn the finding by The Law Society of Upper Canada, the governing body for lawyers and paralegals, that he is guilty of professional misconduct for the way he behaved during Felderhof’s trial.
He was convicted by a law society hearing panel of six counts that, on a simple reading, are exactly the same.
(An appeals panel later dismissed some of the counts — that’s because they are the same! — and reduced Groia’s penalty of two months’ suspension and a $247,000 costs award, but the OSC is now seeking to reinstate the terms of the original whacking.)
Honest to Pete, I’m not making this up: Groia was charged with failing to treat the court with respect and courtesy; failing to act in good faith by failing to conduct himself in a fair and courteous manner; undermining the integrity of the profession by being abusive or offensive in his communication with OSC prosecutors; communicating with the prosecutors in an abusive or offensive way; failing to act with courtesy and good faith; and failing to be courteous, civil and to act in good faith.
Seriously, doesn’t it all boil down to a single allegation of being a rude pain in the arse? Saying it six times strikes me as akin to the way the police sometimes overcharge some poor sap six ways to heaven with substantially the same criminal offence.
I can’t begin to tell you the number of trees felled in the prosecution of Groia, and, cheeky bugger, his vigorous defence of himself.
What began in Ontario court with Felderhof’s trial on charges of insider trading ended up at various stages at the Superior Court, the Court of Appeal for Ontario and the appeals panel of the law society. The pages of rulings would choke a horse.
But cut to the chase, and there are a couple of pretty simple and important principles at stake — core values, as Groia’s lawyer, Earl Cherniak, put it.
One is the public’s interest in an independent judiciary, fearless and free from meddling and second-guessing by the law society.
Judge Peter Hryn was the trial judge. While he may have tired of Groia’s rhetoric and verbal assaults upon the OSC prosecutors, he never said so, never criticized Groia, despite regular imprecations from the prosecutor to do so.
It’s not just a question of who the heck is The Law Society of Upper Canada to take umbrage at the way Groia does business if the trial judge didn’t. By finding that Groia misconducted himself, the logical inference is that so did Judge Hryn. And that treads upon judicial independence.
The second big value at stake is the public’s right to zealous advocacy by lawyers with the full right to freedom of expression, the same right for which the Charlie Hebdo cartoonists died.
This is theoretical only until you, the citizen, need a lawyer, as Felderhof did.
He needed a guy who was fully in his corner, who would do anything within the rules (and the rules about civility are fuzzy) to save his butt, who would fight and claw, and do his very best to see he wasn’t convicted, and whose first and last loyalty was to him.
But how can defence lawyers be the zealous advocates they’re supposed to be if, as with Groia, years after they have defended a client and without a complainant, the law society can swan in, with its delicate sensibilities, and say, with the ill-earned wisdom of hindsight, “Whoa, fellow. You crossed the line there” and subject them to professional discipline?
So those are the issues and what’s up for grabs in Courtroom 3 at Osgoode Hall this week.
As for my position on Groia, I am with F.E. Smith, an English lawyer and the First Earl of Birkenhead, who, according to his son’s book about him, once had the following exchange.
“Judge: ‘You are extremely offensive, young man.’
“Smith: ‘As a matter of fact, we both are, and the only difference between us is that I am trying to be, and you can’t help it.’