Law Times

September 26, 2011

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PAGE 8 An open letter to LSUC about Groia BY HAIG DeRUSHA For Law Times The following is an open letter from lawyer Haig DeRusha to Law Society of Upper Canada Treasurer Laurie Pawlitza. I am a member of the law society and a lawyer practising civil, criminal, and family litigation since 1984. I wish to comment on the proceedings which I understand are occurring regarding Mr. Joseph Groia. I will be urging the law society to reconsider its po- sition with respect to how they are proceeding against Mr. Groia. It is Kip Daechsel's article in the Law Times of Sept. 5, 2011, which has inspired me to write this letter. I bring to your attention that I have no personal relationship with Mr. Groia, nor do I have a relationship with Kip Daechsel. The article states that the law society has taken the position that the alleged professional misconduct was res ju- dicata because the prosecutor in the criminal case Mr. Groia was defending brought an application before the late justice Archie Campbell of the Superior Court asking for the removal of the trial judge. The article said that justice Campbell dismissed the pros- ecutor's application but then gave some obiter comments about Mr. Groia's behaviour, as well as the Crown's behaviour, in the criminal proceeding. Now I understand that the law society is prosecuting Mr. Groia in a disciplinary proceeding and saying that there has already been a finding of professional misconduct by Mr. Groia and it is simply a sentencing proceeding. Mr. Groia would like a chance to explain his actions. In my opinion, any defence about what a lawyer does in a proceeding has to take into consideration solicitor-client privilege and certainly none of that could be waived or compromised if the issues were being questioned in relation to the proceeding against Mr. Groia's client. Regardless as to whether an argument can be made that these allegations against him are res judicata, that does not mean the law society is bound to make that argument. In my view, it is entirely within your discretion to have a full hearing on the issue. That to me is exactly what it should choose to do. Anything less is most concerning and gives me a chill. Speaker's Corner LT Haig DeRusha is a lawyer with the DeRusha Law Firm in Missis- sauga, Ont. COMMENT September 26, 2011 • Law timeS A short history of incivility of Upper Canada's hearings in August as to whether liti- gator Joe Groia W violated the standards of professional con- duct in his heated exchanges with opposing counsel during the John Felderhof case raised these questions with new ur- gency. But the issue has been around forever. Lawyers abusing each other in court might seem to be a symptom of the hyper- competitive modern era of business-driven legal mores. But back in 1820, British law- yer Henry Brougham declared that a lawyer's only duty was to the client, no matter "the alarm, the torments, the de- struction which he may bring upon others." Civility, then, is an old problem. But the remedies have evolved. Canadian lawyers have their own history of debates about enforcing civility. In 1806, William Weekes, a leading liti- gator of the day, was on a tear in Queen's Bench court in Ni- agara. When he went so far as to call the lieutenant-governor "a gothic barbarian," opposing counsel William Dickson de- nounced his incivility. Weekes, who would have none of it, challenged Dickson to a duel. Dickson accepted the challenge and shot Weekes dead. Were the lawyers a little more civil after that? For most of the 19th cen- tury, decorum among lawyers was enforced informally. If an English barrister's conduct was hat is civility among lawyers? The Law Society found inappropriate, others simply declined to dine with that person. Since bar din- ners were where much of the work got done, it was usually an effective sanction. Duelling, then, seems to have been a recourse for extreme circum- stances. In Canadian courts, it was That's By Christopher Moore most often the judges who enforced decorum and defer- ence. Fifty years ago, many judges were very much willing to impose their own standards of behaviour on the lawyers before them. Deference to au- thority isn't what it used to be, however, and judges seem less inclined to be courtroom auto- crats. Meanwhile, the lawyers stepped back in. By the 1920s, defending civility was one of the goals of the newly found- ed Canadian Bar Association, which moved quickly on a formal code of conduct. It was a sign of new professional as- pirations among lawyers and perhaps also reflected distrust of an influx of foreigners — meaning Jews, in this case — who might not have grown up with the profession's inherited norms. Civility is political, too. In 1959, the law society formed the first standing com- mittee on professional conduct. That era produced the high-wa- ter mark for law society control of lawyers' behaviour. The pro- fessional conduct committee set out rules for lawyers' signage, their listings in telephone direc- tories, their appearances in pub- lic, and even the design of their letterheads. History The committee also pro- duced the law society's first pro- fessional conduct handbook in 1964. It was an educational and advisory effort, the committee said. But events were pushing the profession towards black-letter defini- tions even for intangibles like civility. By the 1960s, the law soci- ety's disciplinary decisions were being appealed to the courts for the first time. Under judicial re- view, there was little scope for informal standards and rule- of-thumb sanctions. Disciplin- ary processes rapidly became quasi-judicial. The handbook of guidelines hardened into rules of professional conduct, includ- ing one that said that a "pattern of rude, provocative or disrup- tive conduct . . . might well merit discipline." That disciplinary rule, like duelling in the 19th century, was mostly kept in reserve. But in the last decade or so, as con- cern about a decline in civility grew among senior lawyers, the response was mostly exhortation, seminars for students, and pub- lications such as The Advocates' Society's Principles of Civility for Advocates. How to maintain an adversarial system and still per- suade everyone to play nicely seemed to remain mostly a ques- tion for discussion. In the end, however, the Law Times congratulates the 192 new lawyers who were called to the bar last Wednesday. A ceremony to mark the occasion took place at Roy Thomson Hall in Toronto. Erinma Uchenna Holly Abara Marie-Claire Albanese Minoo Alipour Birgani Timothy Alexander Gordon Andison Anthony Andreopoulos Sarah Aouchiche Jennifer Anne Arnold Tania Artinian David Wallace III Austin Andrew Ryan Avis Priti Baijal Alfredo Martin Bangloy Jr. James Richard Gerald Baxter Gurdarshan Pal Singh Bedi Sultana Lily-Rose Bennett Mariya Berenbaum Mara Janina Berger Ori Bergman Christopher Harley Bird Claudia Ximena Bordes David Joseph Borg Erik Bornmann James Alexander George Brown Melissa Josianne Carew Zarah Kathrina Ong Carlos Alison Rebecca Carr Roberto Michele Caruso Marcos Cervantes Laflamme Kenny Chang Karen Kit-Ling Chee Yin-Yuan Chen Ya Ying Joelle Chia Gene-Paul Chiarello Stefanie Ka Yee Chin-Yick Rebekah Leah Church Sophie Nicole Clermont Dionne Alexia Coley Michael Christopher Comartin Lawrence Alvarez Conmigo Maria Margaret Conroy Paul Nathan Cooper Sanjeev Kumar Dahiya James Edward Dean Kulvinder Deol Gurratan Singh Dhaliwal Eliza Dinale Christopher Joonas Donaldson Erika Merit Douglas Andrés Jonathan Drew Elizabeth Torrey Duncan Ellen Oluranti Imotseme Egbedeyi- Emmanuel Annesa Maria Feeley O'Brien Americo Fernandes Anna Flisfeder Connie Adel Fortin Mary Janet Edith Foss Nuri George Inksetter Frame Rory Alexander Profit Gillis Michael George Grosman Jerrod Kyle Grossman Nicole Theresa Guthrie Diane Laïla Hachem Sina Hariri Felix Maurice Ka-Lik Hau Vershone Capri Herd Jeremy Stephen Herron Jennifer Clare Hodgins Alan Honner Nazish Hussain Sharon Ann Kamla Jeethan Jasmeet Kala Sarah Kim Jennifer Anne Klinck Rami Mark Kozman Ian Christopher Kuehl Sean Matthew Kwinter Adrian Harris Lambert Jeffrey William LaPorte Olufolabi O Laseinde Catherine Marie-Pier Latulippe Amelia Lai Wah Lau Eric Christopher Laxton Eun Kyung Lee Anna Victoria Lillicrap Peter Maurice Liston Masha Yujiao Loftus Timothy John Longboat Craig Derek Lopes Molly Christine Luu Courtney Sylvia Marie Mac Intosh Shana Elizabeth Martins Maiato Mekhriban Mamedova Jagdeep Singh Mangat Sarah Beth Manilla Virginie Marier Veronica Sylvia Marson Amanda Jane Mason Marilyn Anne Maxwell Smith Sharon Ann Mc Cartan Andrea Elizabeth Mc Garry Rory Alexander Patrick Mc Leod Mc Gillis William John Mc Nair Adrienne Maureen McBride Alison Laura Dawn McBurney Arjeta Meneri Elizabeth Shirley Midolo Stefano Edoardo Marco Mingarelli Anudeep Singh Minhas Baljit More Laura Krystyna Morris Subramanyam Narasimhan Kay Jacklyn Thao Trinh Nguyen Sara Nooraei Chukwukadibia Vincent Nwobele Isoken Agharese Osunde Adeleke Olugbenga Oyegunle Justin Papazian Pranav Bhupendra Patel Jasveen Patheja Shengmin Pei Louis Philippe Joseph Raynald Pellegrini Karen Pauline Pelletier Frederic Richard Perron-Welch Jared Gobin Persaud Robert Adam Peterson Aleksandra Petkovic Erin Lisa Pleet Kyle Behune Plunkett Andra Nora Preda Alina Sarah Preston Wela Zhi Wen Quan Peter Quansah Jr. Meena Rafie Sarvnaz Raissi Brian Jeffrey Rakowski Logan Ambrose Rathbone Marilyn Jean Reckord Mohamad Ziad Reslan Nicholas Patrick Richards-Bentley Glenn William Ridler Jean René Joseph Rochon Mira Lee Ross Ashley Edward Antonin Rouse Mark David Sean Rubenstein Raphael David Rutman Amanpreet Rye Evan Rory Sarazen Yvonne Scarangella Lana Tonille Sgambelluri Raisa Sharipova Vipin Kumar Sharma Keisha-Ann Michelle Simonne Shaw Hill Svetlana Shpigelman Abimanyu Sivarasa Singam Samuel Singer Shokheen Kaur Singh Dumoluhle Siziba Alexander Nicolaas Smit Jordan Peter Snel Daniel Paul Sommers Fallon Lee Spencer Matthew Joseph Peter Stepura Nicole Susanne Stortini Amanda Tamara Stuart Anna Marian Stuffco Priya Subramanian Lesley Mary Taafe Farzana Tabassum Azadeh Tamjeedi Robert Hossein Tanha Caitlin Anne Tarves Jordan Michael Teperman Rachael Patricia Terrion Melissa Sharon Tessler Tamsin Sian Thomas Andrew Leslie Tischler Leah Christine Towell Meghan Louise Tucker Zeeshan Ullah Vikramjit Singh Uppal Cara Dawn Valiquette Anita Verma Jaspal Singh Virk Puja Walia Aneesa Walji Sumar Andrew James Weafer Joel Michael Welch Carla Florence Whillier Sarah Elise Whitmore Daniel Robert Wiener Daniel Arthur Wilcock Besar Xhelili profession can hardly avoid the effort to apply black-letter stric- tures to intangible aspirations. On one hand, the profession has become so large, anony- mous, and results-driven that it seems unlikely that moral sua- sion and personal examples can be sufficient guarantors of civil- ity among lawyers. On the other, law societies find themselves obliged to make binding rule-based judgments on many questions that turn on intangibles. Can a pardoned killer, a law gradudate with a criminal record or a former sex worker become a lawyer? It's a question of fitness, but law so- cieties must decide and face the criticism either way. It's the same with civility. Some law society critics argue persuasively that professional conduct hearings on civility must be chilling on vigorous advocacy. Others, just as per- suasively, argue that character and civility remain fundamen- tal to how lawyers work and that someone has to say so. It's not a debate that will go away soon. LT Christopher Moore is taking a break from That's History. After almost 200 columns and nearly 15 years with Law Times, this will be his final article in the se- ries. Another columnist will con- tinue the series soon.

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