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A Tale of Two Regulators: When Courts and Law Societies Collide

The issue of lawyer civility—or lack thereof—continues be a hot topic this fall, with the Groia matter reaching its way to a Law Society Appeal Panel hearing on September 9 and 10.

Many arguments have been advanced both in favour of and against creating formal regimes to monitor and sanction lawyer incivility. For example, the disciplinary panel that originally heard Mr. Groia’s case suggested in its reasons that regulating lawyer civility is necessary to protect the proper administration of justice, trial fairness, and public confidence in the justice system. Others, including myself and fellow Slaw columnist Alice Woolley, have questioned whether the potential downsides of formal civility regulation outweigh its possible benefits.[1]

For the moment, I want to focus on another issue that is raised by the recent appeal in Mr. Groia’s case: the tensions that result from having both the courts and law societies play a role in regulating lawyers in Canada.

The Supreme Court of Canada has repeatedly taken pains to frame courts as cooperative regulators with the law societies, positioning each as occupying a distinct, separate and equally powerful role. Take, for example, Justice Rothstein’s comments at paragraph 35 of R. v. Cunningham:

The law societies play an essential role in disciplining lawyers for unprofessional conduct; however, the purpose of the court overseeing withdrawal is not disciplinary. The court’s authority is preventative — to protect the administration of justice and ensure trial fairness. The disciplinary role of the law society is reactive. Both roles are necessary to ensure effective regulation of the profession and protect the process of the court.

These comments accurately reflect the fact it is possible to ascribe different mandates to the courts and law societies when it comes to regulating lawyers: judicial regulation is concerned with the administration of justice, while law societies are charged with governing the profession. The problem with focusing on these different mandates, however, is that it tends to obscure the very real ways in which the regulatory efforts of the courts and the profession can, and sometimes do, conflict and collide.

A simple example: if courts wish to establish more rigourous conflict rules than those provided in law society codes of professional conduct, the upshot will be that that lawyers will be unable to act in certain cases regardless of whether the law society rules would permit them to do so. This result is difficult to reconcile with the characterization of courts and law societies as cooperative regulators, with distinctive roles. With respect to certain issues, courts and law societies exert overlapping (and potentially conflicting) regulatory authority.

In the Groia matter, the parties have hotly debated some of the consequences of this overlapping regulatory authority. Mr. Groia argues in his appeal factum, among other things, that the panel below improperly “second-guessed” the trial judge’s management of trial (and thereby interfered with the independence of judiciary) by choosing to discipline Mr. Groia for conduct that the trial judge himself did not censure. Mr. Groia further suggests:

As a matter of law and policy, the LSUC should never discipline a lawyer for his or her conduct in open court unless:

(a) there has been a finding of contempt against the Lawyer after a full hearing; or

(b) the judge has referred the conduct to the LSUC, which then conducts a fair and full assessment of the issues related to that conduct and operates in a complementary manner to the supervisory role of a trial judge in the conduct of the trial; or

(c) the Murphy exception, where the behaviour of counsel and the trial judge was so egregious that both were subjected to discipline.

The Law Society argues in its responding factum that such conditions,

would, if recognized, impermissibly circumscribe the jurisdiction conferred by the Law Society Act, and would in effect greatly circumscribe the Law Society’s ability to regulate the profession in the public interest.

Mr. Groia’s appeal also raises the important issue of how law society disciplinary panels may use comments about a lawyer’s conduct made by an adjudicator in a prior proceeding. Indeed, the degree to which a lawyer may challenge such judicial comments in defending himself or herself against disciplinary charges is one focus of the Advocates’ Society’s submissions as an intervenor on the appeal.

The Groia matter has led to a healthy debate about the merits of formal law society regulation of lawyer civility that will no doubt continue as this case proceeds. It also raises important questions about interactions between the regulatory roles of courts and law societies. These questions will not end with the disposition of Mr. Groia’s appeal (and any other subsequent appeals in the matter) but will continue to arise in future cases as courts and law societies continue to play overlapping and sometimes conflicting roles in regulating lawyer conduct.


[1] A helpful summary of some of these arguments can be found here.

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Comments

  1. Well said. I never found the distinction in Cunningham to be coherent. Courts are always reactive in an adversarial system of justice — they can only respond to cases brought before them. Meanwhile it seems far-fetched to deny that the law societies’ role is largely preventative, insofar as they are trying to promote good behaviour and not simply exact retribution.

    It seems to me that there is a natural division of labour re civility. Let the law societies take the lead on alleged incivility out of court, eg rude emails etc. Let judges take the lead on alleged incivility in court. As Groia said, it is judges who know that context best, and judges who are in the best position to evaluate the effect of allegedly incivil advocacy on the administration of justice.

  2. Isn’t this case also about respect and how to argue, at the workplace, in a civil manner? The relationship between the Court and the Law Societies is an imperfect one where rules and regulations should overlap in the administration of justice and in the public interest. Just because a judge does not remark on a lawyer’s incivility in open court does not mean this alleged incivility did not occur. The court is a workplace and therefore, all stakeholders have the right to file a complaint with their professional regulators if respect is not reciprocated. Lawyers also have a voice (March 2012 Dore vs. Boilard) to complain about a Judge’s conduct to the Judicial Council. The Courts and the Law Societies must be united in their efforts to ensure that all stakeholders (law of prevention ) respond to ethical concerns in the workplace.
    In the words of Anderson Cooper, we should all try “keeping them honest”.

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