THE ADVOCATE V O L . 7 5 P A R T 4 J U L Y 2 0 1 7 539
In this case, the offending comments regarding defence counsel were
inflammatory and prejudicial to the defence because they improperly
invited the jury to decide the case on the basis of an extraneous and irrelevant
consideration—the credibility of defence counsel—rather than on
the strength of the evidence adduced at trial.8
Incivility comes with a price. It can be in the form of special costs ordered
against the party whose counsel made baseless attacks,9 or costs against the
uncivil lawyer personally.10 Costs aside, there is time. In
Landolfi, it rendered the first three-week trial a colossal waste of effort. Even
though the uncivil lawyer was not ordered to pay the costs in Landolfi, he
might very well have had to write off his time, as his clients could hardly be
expected to outlay the costs associated with the forgone proceeding. This is
not to mention the incalculable emotional toll it takes on the parties to have
the same matter tried again. Some litigants, exhausted by protracted litigation,
may forfeit their day in court and opt instead for a less ideal settlement.
Such a scenario brings to the fore what Justice Breyell cautioned in Chen v.
Beltran: “Conduct that may be characterized as uncivil, abrasive, hostile or
obstructive necessarily impedes the goal of resolving conflicts rationally,
peacefully, and efficiently, in turn delaying or even denying justice.”11
WHEN ZEALOUS ADVOCACY STRAYS INTO PROFESSIONAL MISCONDUCT
Notwithstanding that incivility lacks clear definition, there must be a workable
test to determine when the line has been crossed, meriting discipline.
The proper test for scrutinizing in-court conduct has been a matter of
debate. As Groia has wound its way through various administrative tribunals
and courts, three different tests have emerged.
First, there is the test adopted by the Law Society Appeal Panel, which
was later affirmed by the majority of the Court of Appeal: the incivility
threshold is crossed when a lawyer makes allegations of prosecutorial misconduct
or otherwise impugns the integrity of opposing counsel, unless the
allegations are made in good faith and with a reasonable basis. It is a contextual
inquiry, as the panel emphasized, to “ensure that the vicissitudes
that confront courtroom advocates are fairly accounted for so as not to create
a chilling effect on zealous advocacy.”12
Second is the Divisional Court’s fortified version of the test. To trigger discipline,
the conduct must not only cross the incivility threshold, but also
“bring the administration of justice into disrepute, or … have the tendency
to do so”.13 This additional component may add little to the analysis, however.
The Divisional Court itself made the point when it upheld the panel’s
decision, even though the panel never adverted to the additional factor.