538 V O L . 7 5 P A R T 4 J U L Y 2 0 1 7 THE ADVOCATE
Such sentiments find echoes in contemporary codes of professional conduct.
The commentary to Rule 5.1-1 of the Code of Professional Conduct for
British Columbia (the “Code”), for example, provides:
In adversarial proceedings, the lawyer has a duty to the client to raise
fearlessly every issue, advance every argument and ask every question,
however distasteful, that the lawyer thinks will help the client’s case and
to endeavour to obtain for the client the benefit of every remedy and
defence authorized by law. The lawyer must discharge this duty by fair
and honourable means, without illegality and in a manner that is consistent
with the lawyer’s duty to treat the tribunal with candour, fairness,
courtesy and respect and in a way that promotes the parties’ right to a fair
hearing in which justice can be done. Maintaining dignity, decorum and
courtesy in the courtroom is not an empty formality because, unless
order is maintained, rights cannot be protected.3
So not only is zealous advocacy required to oil the wheels of our system
of justice, but also it is one of the finest expressions of professionalism.
A lawyer’s duty to advocate with zeal has limits, one of which is the need to
behave civilly. Rule 7.2-1 of the Code, entitled “Courtesy and Good Faith”,
directs: “A lawyer must be courteous and civil and act in good faith with all
persons with whom the lawyer has dealings in the course of his or her practice.”
Codes of professional conduct promulgated by other law societies similarly
Civility is highly context-dependent. What is appropriate to say or do in
one context is not necessarily so in another.
It is no wonder, then, that courts and tribunals have struggled to articulate
the meaning of civility as a regulatory standard with any precision. In
Doré v. Barreau du Québec, Justice Abella described the reverse side of it,
incivility, as “potent displays of disrespect for the participants in the justice
system, beyond mere rudeness or discourtesy”.4 The majority of the Court
of Appeal in Groia did not even venture to try, instead remarking “a precise
definition of incivility is elusive and undesirable”.5
However elusive the concept is to pin down, what is clear is that incivility
hampers justice. Bald, ad hominem attacks on opposing counsel at trial
compromise trial fairness and the legitimacy of the decision rendered. Landolfi
v. Fargione6 illustrates the point. In closing address, counsel for the
plaintiffs accused defence counsel of misrepresenting and fabricating evidence.
7 The jury found in favour of the plaintiffs and the defendants
appealed. Cronk J.A. ordered a new trial, explaining:
Such attacks are not only uncivil and unprofessional, left unchecked they
also endanger trial fairness and stain the administration of justice.