Legal Culture, Civility in Law, and Mediation: Considering Joseph Groia

 It seems to me that the practice of law is changing. Perhaps it is my anthropological and social justice interest which places a more contextual spin on things, but I think it is also illustrated by the more recent move towards civility by bodies such as the Law Society of Upper Canada (LSUC) and the Advocates' Society.   LSUC reports that complaints about incivility, behaving dishonerably, and misleading the court made up 35% of complaints in 2008, up from 11% in 2004 (Philip Slayton, “There can be too much civility”, Canadian Lawyer (May 2010) online: Canadian Lawyer < http://
www.canadianlawyermag.com/There-can-be-too-much-civility.html>).  Additionally, there has been a push for more ethics and professionalism to be taught in law schools, which includes teaching civility. And finally, my optional upper year ethics course had two lectures dedicated to forms of zealous advocacy so that we could examine where to draw the line in how you promote your case as a lawyer.

The apparent increase in complaints, in my view, is not due to an increase of incivility in lawyers, but to a change in legal culture.  The change is a broad shift from a more aggressive and individualistic form of conflict resolution in the court room, to an expectation for a more contextual and inclusive approach to conflict resolution altogether. Alternative dispute resolution is an example of the latter. So is the "new" civility in the court room, which is presently being shaped by cases such as Joseph Groia's trial with the LSUC.

For those of you who aren't familiar with Groia's case, I will provide a quick summary based on a lecture he gave my class personally. He was the lawyer for Mr. Felderhof, a geologist for Bre-X Minerals. Bre-X claimed to have found much gold abroad and its stocks went up through the roof, before it was discovered that in fact there was no gold. Felderhof didn't know there was no gold as he was relying on others, but he still ended up in oodles of trouble with the Ontario Securities Commission (OSC). Groia was a friend of Felderhofs as well as a top Securities litigator, having been the former head of enforcement for the OSC. He was also known as a tough and fearless litigator, which made him highly sought after for anyone that got themselves into trouble.

In Groia's lengthy representation of Felderhof at trial, he was accused of being sarcastic and uncivil to the opposing counsel and party to the point that the prosecutors sought to remove the judge hearing the matter part way through the long trial because he had lost control of his courtroom, and more specifically, Groia. Their request was denied, and the decision was upheld on appeal, and so the trial continued with the original judge. But after the fact, the LSUC initiated an action against him for his "bad" behaviour in the Bre-X trial.

Groia came to speak to my class last semester and read us some of the quotes from trial that were being used against him. While they were aggressive and sometimes sarcastic, they weren't downright nasty - they insinuated things he was seeing from the opposing counsel.  He claims that they were in response to an equally difficult opposing counsel, and secondly, that he has the right to defend his client to the best of his ability.

My father is a lawyer and he grew up in the same era as Groia. It seems to me that law then was about fighting for your client. The more of a fighter you were, the more successful you were. And this may still be the case. However, in our cohort in ADR classes, we discuss alternative forms of dispute resolution. This includes the process of dealing with challenging clients, opposing parties, or by extension, opposing counsel. The idea is to better understand the context of the conflict, the cultural backgrounds of the people involved, and getting to the heart of the issue.

So what is happening? The culture of law historically has been geared towards more zealous advocacy. Many clients look for this in their lawyer. In his presentation to us, Groia pointed out rule 4.1 of the LSUC's Rules of Professional Conduct, which says that a lawyer shall represent the client resolutely. In the commentary for the Rule, it is stated that “the lawyer has a duty to the client to raise fearlessly every issue" (LSUC, Rules of Professional Conduct, (2000), online: <http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486159>)  He also presented several sources which show that the duty of the lawyer is always to his or her client.

We spent one of our ADR classes on culture, which was defined there as beliefs that dictate how we view the world around us, how we act and react, and how we make behavioural decisions. Our culture has a strong impact on conflict resolution. It affects what process we select to resolve a conflict, what solutions are reasonable, and has a a strong impact on what the lawyer's role is. It also has value for us, and in our unconscious, our assumptions become positively valued as right or good so that we are also emotionally involved in our beliefs.

My professor at the University of Ottawa, Marina Pavlovic, has an excellent depiction of an iceberg as a metaphor. The idea is that our fundamental assumptions are the largest portion of the iceberg that lays the deepest underwater. A little further towards the surface are our knowledge, structures, values, beliefs and norms which rest upon our fundamental assumptions. And finally, the part of the iceberg above the surface is the smallest part, but it is the most visible, and it is our behaviours and institutions.

Applying this to conflict resolution in law, it is clear that Groia and those that would support him see the fundamental point of law as representing the client. They are to act independently, competitively and confrontationally if necessary. Court is the best choice for pursuing on behalf of clients in this model since it is adversarial and best suits the attributes above.

What I am suggesting is the new mentality is somewhat different. The new lawyer is more interested in acting collectively with opposition, cooperating, and ensuring that the best outcome is had for all, or at least, opposing parties or counsels are not unfairly treated. Things like mediation are considered first in order to see if a compromise that will benefit all parties as much as possible can be reached. If things go to trial, there may be more focus on civility and respect of other stakeholders than getting the best deal for one's client. (Concepts in the last two paragraphs taken from Geertz Hofstede's work on cultural differences, see G. Hofstede, Culture's Consequences: International Differences in Work Related Values (Beverly Hills, CA: Sage, 1980) 

Is one legal culture better than the other? This remains in debate as critics and advocates of the Groia case continue to disagree. I leave it to you to decide.  For more on this topic see Kevin Marron, "Uncivil Law" (2006) The Canadian Lawyer, online: <http://www.canadianlawyermag.com/Uncivil-law.html>.