Is Zealous Advocacy Passé?

“Counsel who are the target of professional vilification by their opponents are not obliged to simply ‘deal with it’. The often misused adage that “a hard fought trial is not a tea party” does not license abusive and unprofessional behaviour towards opposing counsel.” [Emphasis added.]

In Groia v. The Law Society of Upper Canada, 2016 ONCA 471, the Court of Appeal affirmed the decision of the Law Society Hearing Panel and the Appeal Panel. The Panels found that Mr. Groia’s conduct at trial transcended rudeness and entered the realm of professional misconduct. In particular it was found that Mr. Groia used the issue of admissibility of documents to launch an attack against the prosecutors. His statements on that topic indicated that the prosecutors were reneging on their promises, that they were attempting to circumvent the rules of evidence, and that they were not to be trusted. “By day 52 of the trial, Mr. Groia’s complaints regarding the OSC prosecutors’ approach to its disclosure obligations, the admissibility of documents and Mr. Felderhof’s right to make full answer and defence had undeniably matured into blunt accusations of deliberate prosecutorial misconduct.” As a result, the prosecutors felt that they were maligned throughout the proceedings as lazy, incompetent, and hell-bent on convicting the accused.

Justice Cronk writing for the Majority approved the Advocates’ Society’s Principles, which states that “the duty of zealous representation must be balanced with duties to the court, to opposing counsel and to the administration of justice.”

At paragraphs 132, 133, 137, and 139, Justice Cronk states that:

[132] The duty of zealous advocacy must be jealously protected and broadly construed. But it is not absolute and must not be abused. Nor do the Conduct Rules assign it paramountcy. The Conduct Rules provide for a constellation of obligations that together make up the overarching duty of professionalism that conditions the privilege of practising law in Ontario.

[133] The advocate’s duty of professionalism encompasses both the duty of zealous advocacy and the duty of courtesy and civility…

[137] …“Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client.” … As I have said, defence counsel’s obligation to his or her client to fearlessly raise every legitimate issue is not incompatible with these duties to the court, to fellow counsel and to the profession…

[139] The crucial point is that all participants in litigation and the public have a legitimate right to expect that the advocate’s duty of zealous advocacy will be tempered by the overriding duty to adhere to all the standards of the profession, including the duty to act with courtesy and civility and in good faith. This case affords an apt example. An advocate’s duty to his or her client does not permit the advocate to act unprofessionally…

I agree that zealous advocacy should not give lawyers permission to be assholes. In fact, zealous advocacy usually requires counsel to be on civil terms with opposing counsel. But, when the two somehow find themselves diametrically opposed, zealous advocacy should be paramount to civility.

Further, we should all be concerned about how we conceptualize “professional conduct”. At some points in time, “professionalism” has been used as a weapon to keep the “undesirables” out of the profession.

Professor Constance Backhouse discusses this very issue in her paper “Gender and Race in the Construction of ‘Legal Professionalism’: Historical Perspectives”. She provides several examples, including an example from the 1800s. In 1820, the Law Society used to require licensing candidates to give a translation of Cicero’s Orations in order to show that the candidate had a liberal education and was proficient in English and Latin.

However, “[i]n 1825, the Law Society determined that its efforts to weed out the ‘ungentlemanly’ had not gone far enough.” Therefore, the Society decided that the future examinations should require a display of a general knowledge of English, Grecian and Roman History, an acquaintance with one of the ancient Latin Poets, and an understanding of mathematics. This was done because only pupils from upper-middle class backgrounds had access to such education.

As a litigator, I agree that we should all strive for civility. But civility is a broad concept, ripe for abuse.