In an age when wrongful convictions are unearthed regularly and newspapers abound with stories of government misconduct, one might expect the role of defence lawyers to have earned a modicum of respect.

Guess again. The unsettling case of lawyer Joseph Groia is a shining example of how poorly the role of defence counsel is understood.

Groia is accused of defending his client too enthusiastically.

The case has evolved into a historic clash between defence counsel’s obligation to represent clients fearlessly and the justice system’s desire for courtroom civility and decorum. Beyond dividing the legal profession, it threatens the very foundation of what it means to advocate on behalf of a client.

Thus far, eight judges and eight Law Society of Upper Canada disciplinary adjudicators have taken their turns at bat, weighing allegations of misconduct against Groia for his defence of Bre-X Minerals executive John Felderhof on criminal securities act violations.

The scorecard is grim for Groia. After a slew of hearings, he faces a one-month suspension of his right to practise law and an order that he pay $200,000 in legal costs. Further appeals will likely focus on two central questions: Is there a need to rein in the defence bar? And if so, is there a means to do so that will not endanger the trial process?

The answer to each question is an emphatic no.

Groia’s sin during the lengthy Bre-X trial was to allege, noisily, that Felderhof had been abused and railroaded. Depending on one’s perspective, his manner was gratuitously rude and bombastic or tough, fearless and effective.

That a lawyer vigorously defending his client could be seen as deserving of professional censure reinforces the popular urban myth that defence counsel are more disruptive than helpful when it comes to achieving justice.

The courtroom is not a trousseau tea, where genteel bewigged lawyers agree to disagree. For the defendant it is a fight for his life; one in which the odds are stacked against him by a better-resourced opponent wearing the white hat. A certain amount of toughness is necessary.

If certain defences are off the table because they are too rude to advance, it is not the defence lawyer who suffers; it is the credibility of the legal system as a vehicle for getting to a just result. If a defence lawyer runs the risk of suffering reprisal, how can she be expected to take an unpopular or even irritating position?

Sometimes defence counsel’s work is an obvious ingredient of democracy itself. This spring Canadians will watch defence lawyer Don Bayne put the Conservative government on the hot seat during the trial of Sen. Mike Duffy. Bayne’s defence is a live example of government held to account by a defence counsel.

Recently, the Ontario Court of Appeal overturned an attempted murder conviction on the basis that the trial prosecutor behaved with unacceptable zeal. The defendant — an intensely religious man entangled in a vitriolic separation — was accused of inciting the couple’s three children to drown their mother. In his closing address to the jury, the Crown referred to the defendant as a dangerous “Jesus nut.”

The chance of this prosecutor being disciplined or fined is close to zero. He might be counselled to temper his enthusiasm, an appropriate solution. Groia, on the other hand, saw his reputation and his pocketbook trashed for his transgressions.

Judges have tremendous authority in the courtroom. They are the first line of defence against overzealous lawyering. Lawyers who fling wild accusations lose credibility. They also lose their cases. The profession shuns such lawyers, giving the worst a short shelf life in the private bar. This is a further built-in dynamic, ignored by those who want to rein in defence counsel through the threat of disbarment.

Where the lawyer’s conduct is the product of inexperience or poor training, the Law Society can impose retraining as a condition of licensing. But the protracted disciplinary proceedings Groia endured are certain to make defence counsel who fight hard for unpopular clients apprehensive.

Defence counsel are resigned to being asked: “How can you defend those people?” at dinner parties. I’m confident nobody has ever asked a Crown attorney: “How can you prosecute those people?”

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If it is too much to expect the general public to understand the importance of what we do, it cannot be too much to ask of those who regulate our profession.