Some of you may know that there exists a criminal law contempt of court concept. In addition, there is a civil law (party v party law, as compared to government against citizen criminal law) contempt of court concept.
The punishment for a criminal contempt of court is up to a judge and can include jail.
The punishment for civil contempt of court is also up to a judge, and although it is unlikely to lead to jail, it can lead to a fine.
As you may have guessed, there is an entire legal textbook dedicated to trying to summarize and rationalize the case precedents regarding contempt of court.
These punishments can be levied against a lawyer.
Further, a lawyer can be found guilty of the criminal offence of “obstructing justice” and, assuming perjury could be proven, could be found guilty of being a party or accessory to perjury, if he absolutely knew the client was lying on the stand and did not immediately ask to be removed from the court record.
Now add to this the new concern being bandied about- “incivility” amongst lawyers.
This is largely (in my opinion) a Toronto problem- perhaps caused by too many lawyers chasing too few clients there, or, too much American influence.
One part of the problem at its most essential level, is that the law society rules tell a court room lawyer that he/she must zealously guard the rights of the clients including raising arguments that the lawyer finds distasteful. Yet those same rules say that lawyers should be civil to each other, to the parties, outside of cross examination at least, and of course to the court.
The lawyer faces the following dilemmas- if the client perceives he was not aggressive enough, a malpractice case could be launched if the client had lost the trial- or, the client may levy a complaint to the law society. On the other hand, if the lawyer is overly aggressive he may face a complaint to the Law Society from the opposing lawyer or even from the judge. Further, the judge has a right to control his/her own courtroom, including the right to find a lawyer in contempt of court.
Thus, if a court room lawyer is behaving particularly aggressively, i.e. showing uncivil behaviour, (although aggressive behaviour is not a perfect synonym for uncivil behaviour) but the trial judge does not sanction him, should the law society be able to sanction/fine/suspend him?
That is the issue facing the Supreme Court of Canada in the Groia case- Groia was the lawyer who successfully defended John Felderhoff, the chief geologist of Bre-X Mines, when the Ontario Securities Commission charged Felderhoff with insider trading. The Law Society of Upper Canada had hit solicitor Groia with significant penalties for maligning the truthfulness of the prosecutors in that case. The Ontario Court of Appeal, in a split decision, had upheld those sanctions.
Since every province can, and often does, have slightly different codes of conduct for lawyers, this will be a case that will influence each province’s legal practice and either preserve our staid and polite ways, if the ability to punish by the Law Society is upheld, or send us down the more aggressive American path.
Stay tuned.