Law Times - Newsmakers

Dec 2011 Newsmakers

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top newsmakers Securities lawyer defends 'forceful advocacy' before LSUC BY GLENN KAUTH J oe Groia made headlines this year with his defence of "forceful advocacy" on behalf of his client. Groia, a high-profile securities lawyer, finally got the chance to have his official say in disciplinary proceed- ings over his actions as a defence lawyer for Jon Felderhof during a trial several years ago. At the time, Felderhof was facing accusations of insider trading by the Ontario Securi- ties Commission for his role in the infamous Bre-X Minerals Ltd. gold scandal. In 2009, the Law Society of Upper Canada brought the proceedings against Groia over his conduct during Felderhof 's trial. It alleged he had gone too far in attack- ing prosecutors in what has since become a test of the boundaries of lawyers' civility obligations. He accused prosecutors for the OSC of abuse of process and pro- fessional misconduct, largely over disclosure issues, and said they were trying to secure a conviction of his client "at all costs." During the trial, the OSC moved to have Ontario Court Justice Peter Hryn replaced over claims that the judge had showed bias in failing to restrain Groia. Late Ontario Superior Court jus- tice Archie Campbell dismissed the application, a ruling later upheld on appeal, but judges involved found little that was redeemable in Groia's courtroom rhetoric. Ontario Court of Appeal Jus- especially concerned about the LSUC's apparent position that Groia's alleged misconduct was res judicata, a fact supposedly established by the courts' comments on the application to remove Hryn and the subsequent appeals. "The law society even asserts that it is an abuse of process for Groia to seek his day in court as, in its view, the facts have already been determined," Daechsel, who called the LSUC's approach a "stunning departure from the legal principle of natural justice," wrote. Groia, meanwhile, has been vocal in defending his right to advocate aggressively for his client. "Except in the most egregious of cases, the law society should stay out of attempting to regulate conduct in a courtroom," said his lawyer, Earl Cherniak, as the disciplinary pro- ceedings began. Cherniak noted nobody had reported Groia to the LSUC and said that given the intense public scrutiny on the Bre-X case and the OSC's vast resources available to secure a conviction he believes it was determined to get, Felderhof faced terrible odds in defending himself during the trial. As a result, forceful advocacy was necessary, he maintained. But the lawyer representing the tice Marc Rosenberg, for example, declared the lawyer's conduct to be "appallingly unrestrained and on occasion unprofessional." Campbell, too, denounced Groia's "rhetorical tendency to Joe Groia finally got to have his official say as civility-related disciplinary proceedings against him got underway. characterize as outrageous prosecutorial abuse any position with which he disagrees." The disciplinary proceedings against Groia finally began this summer. But the LSUC's tactics in the case also drew criticism, particularly the fact that it relied almost solely on the transcript of the first 70 days of Felderhof 's trial as well as the rulings by Campbell and the Court of Appeal. In a commentary piece in Law Times, lawyer Kip Daechsel was 6 December 2011 LSUC, Tom Curry of Lenczner Slaght Royce Smith Griffin LLP, said Groia's conduct had a "distort- ing and disruptive effect" on the Felderhof proceedings. He added that Groia's actions "have no place in our courtrooms or in the arsenal of members of this society." The case comes as the law soci- ety has become more aggressive in responding to civility complaints during the last year or two. In that time, it has launched its civility protocol that provides for voluntary men- toring of lawyers who are the subject of complaints. It has also initiated civility-related disciplinary proceedings against a number of lawyers. But Groia's case was the highest profile so far. For his part, Cherniak said the case poses a threat to the independence of the bar and judiciary as well as the public interest. The proceedings are set to resume in 2012.

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