Advocacy Matters - Spring 2020

Answering that question is difficult and highly
subjective, as it will be based for the most part
on our individual experience. But there seem to
be common threads running through the writings
of judges and lawyers alike informing us
that we still have room to improve civility within
the profession. Negative trends have developed,
unfortunately, and bad habits as well as
insufficient or improper mentoring can contribute
to a decline in professionalism being passed
from senior to junior counsel ad infinitum.
As Stockwood points out, “If someone writes
to you saying that they are ‘outraged’ by your
behaviour, it is not necessary to write back
saying that you are outraged by their outrage.”
We have all encountered this type of invective
writing on files, and, at least speaking for myself
in my more junior days of practice, I did
not know how to respond and sought advice
from senior counsel. Looking back, I see that
just like Stockwood who was mentored by John
Robinette and Charles Dubin, I was fortunate
to have the sage advice of first Anita Kain and
then Kelly Jordan, both pillars of restraint and
skilled mentors (I hope they, in turn, believe I
was a good mentee).
Stockwood notes that “[l]itigation has always
been a stressful profession…” but that “[i]t is
ironic that this stress leads to acrimonious relationships
between counsel, which in turn adds
to the stress of the practice.” This is an accepted
truth; every now and then our continuing legal
education programs will include a refresher
on essentially how to behave toward our colleagues,
and I do not believe I have ever seen
a judge’s “Top 10” comments on what they like/
dislike in a courtroom that has not mentioned
their annoyance at counsel who showboat,
bicker, continuously interrupt or otherwise display
a lack of professionalism during a hearing.
The Advocates’ Society’s Principles of Civility for
Advocates sets out detailed guidance for proper
behaviour by counsel and calls on lawyers
to “always be courteous and civil” to one another.
The Law Society of Ontario’s Rules of
Professional Conduct are clear that counsel
must not “over-identify” with their clients, potentially
leading to overly aggressive behaviour
or incivility. In extreme cases, this can lead to
sanctions against the lawyer for their unprofessional
conduct. In family law cases, many of
the issues can be emotionally charged. In the
LSUC v. Ludmer case, one of the counsel was
accused of unacceptably aggressive behaviour
due to over-identifying with the client. The presiding
adjudicator put it this way: “The issues
can lead clients and lawyers to feel passionately,
particularly when we have our own histories.
However, clients will not be well served if
lawyers cannot work together…We must separate
clients’ views from those of lawyers…”
Another recent case of note is Groia v. Law
Society of Upper Canada. This case resonated
throughout the legal profession. We all likely
recall that during a complex trial, the prosecution
filed an application to have Joseph Groia
removed as defence counsel for reasons of perceived
misconduct. Mr. Groia remained on the
case, but later had to defend himself in a Law
Society disciplinary proceeding which wound its
way to the Supreme Court. During that process
the SCC recognized that incivility is “…inherently
contextual and fact-specific.” The court noted
that trials are “often hard fought” and “not tea
parties.” Mr. Groia was eventually successful in
his appeal, and he was also successful in bringing
once again to the fore the debate between
counsel and judges as to what does and does
not cross the line. As counsel, perhaps the best
adage we can strive for is to treat the other side
the way we would expect and want to be treated,
while taking all steps we deem reasonable
and necessary in our job as advocates.
Perhaps not as prevalent or widely talked
about in Stockwood’s time but receiving more
attention today is the issue of mental health in
the practice of law. Lawyers need to be aware
of potential mental health issues that can affect
their clients’ behaviour; in extreme cases, clients’
mental health issues can affect their ability to
understand and participate in litigation, including
giving instructions to counsel. Management
of these types of situations necessarily falls to
counsel, and guidelines are provided in Rule 3.2-
9 of the Rules of Professional Conduct.
Counsel, perhaps particularly those practicing
with families in matrimonial cases, must remember
that their actions and words can influence
how their clients view the justice system. This
can be a heavy burden to bear, especially when
dealing with difficult personalities or issues and
striving for the best outcome for one’s client. My
experience has taught me—as, it seems, David
Stockwood’s taught him— that fraught situations
are rarely if ever made better by negative
escalation; we must strive to demonstrate civility
in the face of adversity and lead by good
behaviour. Perhaps now more than ever, during
this strange time of pandemic and the workarounds
and stressors that have come with that,
counsels’ duty to civility may be truly tested.
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