Zealous lawyer deemed uncivil in Bre-X fraud defence, Appeal Court rules


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TORONTO - A prominent securities lawyer breached the rules for civil behaviour during his aggressive defence of a man charged in the 1990s billion-dollar Bre-X mining fiasco, Ontario's top court ruled Tuesday.

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This article was published 14/06/2016 (2295 days ago), so information in it may no longer be current.

TORONTO – A prominent securities lawyer breached the rules for civil behaviour during his aggressive defence of a man charged in the 1990s billion-dollar Bre-X mining fiasco, Ontario’s top court ruled Tuesday.

In a split decision, the court sided with the society that regulates the legal profession in Ontario in finding Joe Groia went too far.

“The requirement of professionalism for lawyers, both inside and outside a courtroom, including zealous advocacy accompanied by courtesy, civility and good faith dealings, secures the nobility of the profession in which lawyers in this province are privileged to practise,” the Appeal Court said.

“This requirement was breached in this case.”

The decision is the latest in an epic battle between Groia, who successfully defended the only person charged in the history-making securities scandal, and the Law Society of Upper Canada, which at one point suspended him for two months and ordered him to pay $247,000 in costs — later reduced to one month suspension and $200,000.

Among other things, the society’s disciplinary panel faulted the Toronto lawyer for repeatedly slagging the prosecution. It also cited critical comments judges made during the labyrinthine hearings against his client, Bre-X vice-president John Felderhof, who was ultimately acquitted of fraud.

“To say that the…prosecution against Mr. Felderhof was complex, protracted and exceptionally acrimonious significantly understates the time-consuming, stressful and confrontational climate that rapidly infected the proceeding,” said Justice Eleanor Cronk in writing for the majority.

Records show one judge involved in the Bre-X case said Groia was prone to “rhetorical excess and sarcasm” and “petulant invective,” while another said he engaged in “guerilla theatre.”

Groia, who said the misconduct finding against him would dampen the vigour with which lawyers defend their clients in tough cases, lost an initial appeal to Divisional Court. He then turned to the Court of Appeal, where several legal groups intervened on one side or the other.

Groia argued the law society should not, for the most part, discipline lawyers for uncivil conduct in court. He insisted he only did what he had to do defending his client against a no-holds-barred prosecution, and that he shouldn’t have been called to account for how he went at it.

The majority on the Appeal Court disagreed.

“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,” the court said.

“An advocate’s duty to his or her client does not permit the advocate to act unprofessionally.”

In a lengthy dissenting opinion, Justice David Brown disagreed with the majority in “how to determine when a barrister’s in-court conduct amounts to professional misconduct because it is uncivil.”

Essentially, Brown said, the law society appeal panel ignored the trial judge’s rulings in deciding Groia’s behaviour amounted to misconduct.

“Although this court described Mr. Groia’s rhetoric as “improper” and “inappropriate,” not once did the trial judge call Mr. Groia to task for his choice of language,” Brown said.

The Appeal Court awarded no costs given the “issues of significant importance to the legal profession and the public.”

Groia’s lawyer, Earl Cherniak, said he would be asking the Supreme Court to get involved.

“The differences between the majority and dissent reasons set out in stark relief the central issue in the case — who should regulate the conduct of lawyers defending or vindicating their clients’ rights in a court of law,” Cherniak said.

Investors lost billions when Canadian-based Bre-X collapsed in 1997 after claims of an Indonesian gold find turned out to be bogus.

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