Law Times

Page 2 May 6, 2013 Law Times • NEWS LSUC expanding civility protocol to tribunals BY YAMRI TADDESE Law Times A s the debate around incivility continues, the Law Society of Upper Canada is expanding its protocol to allow tribunal adjudicators to report unruly lawyers to it. The law society announced the new protocol at Convocation on April 25. It says the new system will ensure smooth communication with tribunal adjudicators who are unsure of how to deal with incivility and other misconduct by lawyers and paralegals. Such protocols currently exist in the context of the provincial and Superior courts. Some lawyers, however, say the expansion of the protocol to tribunals is unnecessary and will add more red tape to a bureaucratic system. Under the protocol, the law society will establish a "point of contact" with each tribunal or cluster of tribunals who will be responsible for reporting misbehaving lawyers or paralegals in a letter detailing the alleged misconduct and related information. "Tribunal adjudicators confronted with incivility, inappropriate behaviour, and other breaches of the rules of The civility protocol merely adds another layer of bureaucracy, says Earl Cherniak. professional conduct for lawyers and paralegal rules of conduct face dilemmas comparable to those faced by judges," according to the law society's report on the new protocol. "For example, how does an adjudicator complain about conduct by a licensee without risking an apprehension of bias in relation to the substantive issues in dispute, especially in the midst of proceedings? How can a busy adjudicator focus simultaneously on the completion of a hearing and on an ongoing complaint to the law society?" Under the new protocol, the adjudicator will get updates on the progress of the complaint and the eventual disposition. The law society may also call the adjudicator as a witness. But the law society hasn't defined incivility in the report or elsewhere, something that concerns Alice Woolley, a legal ethics professor at the University of Calgary. "My concern would be the effects on advocacy by lawyers in front of tribunals where the members may not necessarily appreciate the jobs lawyers do in advocating for their clients," she says. Often, tribunal adjudicators are members of the profession they oversee who may not adequately understand lawyers' duty to advocate zealously on their clients' behalf, she adds. The law society might say it will only pursue cases where there's a valid claim of incivility, says Woolley, but "the law society wouldn't be in a position to decide that given they weren't there and there is not always good records of those proceedings." She adds: "From a lawyer's point of view, even to have had that process initiated is very negative." Roy Thomas, director of communications at the law society, says the new protocol will "promote civility and professionalism among lawyers and paralegals appearing in court or tribunal proceedings. "In each case brought to the law society's attention by a court or tribunal, there may be opportunities to consider mentoring by experienced practitioners and other solutions that fall short of formal discipline.  Formal discipline remains a possibility, of course, for all regulatory complaints, regardless of source." Thomas suggests the new protocol will give tribunals "a clear and established process for forwarding regulatory issues about legal service providers appearing before them," adding it will ensure public confidence in the law society's ability to deal with complaints against lawyers. But for lawyer Earl Cherniak, the existing procedures are simple and pose few barriers to reporting misconduct by lawyers. Cherniak is representing Joe Groia, a Toronto lawyer found guilty last year of a "consistent pattern of rude, improper or disruptive conduct" while defending John Felderhof in the Bre-X Minerals Ltd. matter. Groia received a two-month suspension and an order to pay $250,000 in costs. He's appealing the decision. "I don't think [the protocol] will have any effect at all other than adding another layer of bureaucracy," says Cherniak. "The fact is that every member of the public, every judge, every member of every tribunal can complain about the conduct of a lawyer by writing a letter to the law society. There are no formalities, there is no procedure. Anybody who is aggrieved by the conduct of a lawyer — whether it is incivility or any other misconduct — all they have to do is write a letter to the law society." The law society says it started looking into creating a protocol for tribunals at the end of 2012, partly at the request of the agencies and tribunal representatives. Tribunals already have the authority to address the behaviour of lawyers and paralegals who appear before them. In some cases, they can even sanction lawyers by finding them in contempt, a fact that adds to the questions as to why the law society is now choosing to get involved, according to Woolley. The controversy around lawyers' civility took the spotlight last year when a law society panel found Groia's choice of words in the decade-old Bre-X trial petulant and offensive to the administration of justice. Many members of the profession, including former Supreme Court justice Ian Binnie, say it's difficult to determine the appropriateness of the words a lawyer used long after an intense trial. The law society plans to launch an outreach program this year to ensure tribunals take advantage of the new reporting system. 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