The Real Incivility Case to Watch

Perhaps the best way to raise awareness of the 2015 Bencher Elections is to highlight what the function of the law society is. The LSUC website states,

The main function of the Law Society of Upper Canada is to ensure that all persons who practise law or provide legal services in Ontario are competent, follow proper procedures and behave ethically.

Ethical behaviour is generally interpreted through the lens of the Rules of Professional Conduct, and is one of the main disciplinary functions of the law society. Discipline, though rarely pleasant, is one of the necessary components of self-regulation. Understandably though, discipline is a highly controversial topic.

The most controversial discipline case in Ontario recently has been Groia v. The Law Society of Upper Canada, where Justice Nordheimer rejected the appeal of a law society discipline hearing on incivility. The reason the Groia case is so central to the Bencher Elections is that Joseph Groia is himself running this year for Bencher. It doesn’t get better than that.

There’s one other case that is far more significant in terms of combating incivility in the profession, and although it involves Ontario lawyers, they are the complainants against another non-practicing lawyer and media personality from Alberta. Justice Pentelechuk recently dismissed a summary judgment motion by Levant to have the judicial review of the Alberta Law Society inWarman v Law Society of Alberta.

What’s strange in this case is that the complaint was initially dismissed on the basis that Levant’s conduct was as a journalist, not in his capacity as a lawyer, despite several provisions in the Law Society of Alberta Code of Conduct indicating that it does apply in a lawyer’s private life and professional endeavours outside of the law. The complainants appealed, and the Appeal Committee stated,

Part of the mandate of the Law Society in protecting the public interest is the regulation of its members. In this case the Member’s failure to moderate his conduct and abide by the Code with respect to his journalistic endeavors and political activism is particularly troubling. The Law Society should not decline its jurisdiction to regulate the Member in this instance. It serves the public interest to ensure that members of the Law Society abide by its directions and regulations. To permit a member to operate outside the provisions of the Code, even when the member does not engage in the practice of law, is to allow members to circumvent the authority of the Law Society.

The convening of a Hearing Committee then failed to occur for 16 weeks, which was followed by a successful Discontinuance Application by Levant. The problem is that the law society failed to inform the complainants of the Discontinuance Application, leading to the judicial review on the basis of abuse of process.

The summary judgement motion sought to dismiss the judicial review on the basis that the complainants have no standing. Justice Pentelechuk found that standing was not necessary for the complainants to have some rights to procedural fairness. She concluded,

[70] It should be no surprise to the Law Society that the optics are problematic in the general context of administration of justice. While the test for abuse of process is high, I am of the view that the determination of the issue of the Conduct Committee’s exercise of its prosecutorial discretion should also be resolved through a full hearing, particularly because the analysis of whether an abuse of process occurred in this instance demands a clear understanding of the factual foundation for the decision of the second Conduct Committee which is intertwined with the issues of standing and the scope of procedural fairness owed to the Respondents. In the result, based on my examination of the Record in this application, I am not satisfied that a disposition that is fair and just to both parties on this issue can be made on the existing

The Supreme Court of Canada stated in Doré v. Barreau du Québec,

[66] We are… balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion. As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise.

The facts in the Levant case are far more compelling than that in Groia, and he has certainly received far more criticism by several ethic boards and tribunals. The greater challenge is what appears to be an inconsistent application of the rules of conduct despite a shared Model Code. Amir Attaran, one of the complainants against Levant, stated in The Globe,

You can’t have a lawyer on national television hiding in a jurisdiction that refuses to discipline him and attacking lawyers elsewhere and undermining the dignity of this profession.

Although Levant won’t be running for Bencher any time soon in Ontario, his discipline case is really the one to watch to determine whether we have the ability to self-regulate effectively.