On November 28, 2013, the Appeal Panel’s decision was released. The decision is publicly available on www.canlii.org (2013 ONSLAP 0041 (CanLII)).
The central question addressed by this case is when does a lawyer engage in professional misconduct because of his/her communications in a courtroom? The Appeal Panel’s comments in answer to this question are highlighted below.
Civility does not discourage zealous advocacy
The Appeal Panel emphasized that although the use of the term “incivility” is a useful general term to describe a range of unprofessional communications, it should not be used to discourage zealous advocacy and may obscure the true nature of “ethical misconduct.” Some of the Appeal Panel’s comments in this regard are set out below.
 Although the term ‘civility’ is used in the Rules of Professional Conduct (and in The Advocates’ Society’s Principles of Civility) and is a useful short form or umbrella term, it does not adequately capture many forms of unprofessional communications that go well beyond rudeness or lack of courtesy. Indeed, we agree with the Appellant’s witness, Professor Alice Woolley, that the word ‘civility’ may tend to obscure the true nature of the ethical misconduct of lawyers subject to discipline for unprofessional communications.
 Professor Woolley gives the example of the lawyer who was disciplined for writing a letter to a mediator with whom he was having a billing dispute. The lawyer said “get ready because I can be ten times a bigger asshole than you, you want to fight, go ahead.” She also cites the example of the lawyer for the plaintiff who used a sexist and degrading expletive to describe the female representative of the defendant insurer. These lawyers are not unprofessional merely because their words are rude and uncouth but also because the nature of their rudeness violates fundamental ethical obligations. In the first case, the lawyer effectively threatened the mediator in order to obtain a legal benefit. In the latter case, the lawyer’s rudeness was directed at an opposing party and could have inhibited her willingness to participate fully and openly in the litigation process. [Emphasis added].
 In other words, mandating ‘civility’ protects and enhances the administration of justice. Accordingly, the word ‘civility’ should not be used to discourage fearless advocacy manifested by passionate, brave and bold language. Indeed, it mischaracterizes the primary objective and meaning of civility obligations to suggest that they mandate politeness or create an obligation akin to ‘being nice to each other’. In any event, as is discussed more fully below, in this case the conduct which is alleged to have ‘crossed the line’ is not mere rudeness, let alone bad manners. Nor is it simply ‘excess rhetoric’ or ‘sarcastic remarks’ about opposing counsel. In this case, the specific issue is the extent to which zealous defence counsel may impugn the integrity of opposing counsel and secondly, whether and to what extent, that in fact occurred.
Discipline is not reserved for the most extreme cases
While it may take more than “mere rudeness” or “bad manners” to amount to professional misconduct, the Appeal Panel determined that professional discipline should not be reserved for the most extreme conduct or only that which results in a miscarriage of justice. Some of the Appeal Panel’s comments in this regard are set out below.
 In our view, the plain language of the Rules of Professional Conduct is inconsistent with such ‘preconditions.’ Specifically, equating a breach of the Rules of Professional Conduct with a finding of contempt expressly contradicts the language of the commentary to Rule 4.01(6) which provides:
4.01(6) Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative, or disruptive conduct by the lawyer, even though unpunished as contempt, might well merit discipline. (emphasis added)
 We also reject the submission that a lawyer’s professional obligations in the courtroom should be determined solely by the views of the presiding judge or other adjudicator. On this point, we agree with the submission of The Advocates’ Society that, the views, comments, or complaints made by the trial judge about counsel’s courtroom communications may either be too harsh or too lenient. After all, the primary role of the trial judge is to ensure a fair trial, not to regulate lawyers’ conduct. Moreover, there may be many reasons why a trial judge may choose to remain relatively passive in the face of one or both counsels’ courtroom incivility, for example, in order to keep the ‘trial on track,’ to avoid ‘entering the fray’ or out of a concern that attempts to reprimand counsel may cause an escalation of the behaviour and trigger allegations of judicial bias or unfairness. In sum, the reaction of the trial judge although relevant is not determinative.
 Likewise, Mr. Groia’s submission that there can be no finding of professional misconduct unless the behaviour of counsel and the trial judge is so egregious that both are subjected to discipline is also too restrictive. Simply stated, as a matter of public protection, it cannot be that the Law Society’s disciplinary jurisdiction over unprofessional courtroom communications should only be exercised in those cases where both the trial judge and counsel misbehave.
 Again, in our view, the plain language of the Rules of Professional Conduct does not support these submissions. In addition, as the Marchand case clearly demonstrates, although the harmful effects of courtroom incivility on the administration of justice will rarely cause the trial judge to lose jurisdiction or cause a miscarriage of justice, the risk of harm to either a particular proceeding or the justice system as a whole is nevertheless real. By virtue of an advocate’s training and expertise, she has the privileged right to speak in Ontario courtrooms. Her voice carries authority and is persuasive. Her criticisms of ‘public authorities’ or other stakeholders in the justice system, such as her opposing counsel, carry a special weight and with that, the potential to undermine. The commentaries to Rules 4.01 and 4.06 speak to this issue:
Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, order is maintained, rights cannot be protected…
A lawyer, by training, opportunity, and experience is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions, and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned.
 In addition, the commentary to Rule 6.03(1) specifically underscores the importance to the administration of justice of ‘fair and courteous’ dealings between lawyers:
The public interest demands that matters entrusted to a lawyer be dealt with effectively and expeditiously, and fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially to this end. The lawyer who behaves otherwise does a disservice to the client, and neglect of the rule will impair the ability of lawyers to perform their function properly…
The presence of personal animosity between licensees involved in a matter may cause their judgment to be clouded by emotional factors and hinder the proper resolution of the matter. Personal remarks or personally abusive tactics interfere with the orderly administration of justice and have no place in our legal system
A lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice, or charges of other licensees, but should be prepared when requested, to advise and represent a client in a complaint involving another licensee.101
A contextual analysis is required
The Appeal Panel concluded that determining when uncivil courtroom communication “crosses the line” is contextual and fact-specific. Specifically, the Appeal Panel commented as follows:
 In our view, determining when uncivil courtroom communication ‘crosses the line’ is, therefore, fundamentally contextual and fact-specific. A contextual analysis will ensure that the vicissitudes that confront courtroom advocates are fairly accounted for so as not to create a chilling effect on zealous advocacy. We agree with the comments of Justice Campbell in R. v. Felderhof when he said:
…it would have a chilling effect on the vigour of defence advocacy if counsel had to parse their language and self-censor each word to ensure that it was perfectly tailored to the occasion and could give no offence. The dividing line between colourful language and abusive language is not always clear…103
 In assessing the context of courtroom communications, it will be important to consider the dynamics, complexity and particular burdens and stakes of the trial. Trials are often difficult for the advocate and the client, but some are particularly so. Many are hard fought. Advocates may be under immense pressure. Sometimes things go awry. It may not be possible to maintain an atmosphere of calm and efficiency. Accordingly, a few ill- chosen words or sarcastic or even nasty comments directed at one’s opponent may not constitute professional misconduct justifying a discipline proceeding, particularly if they reflect a moment of ill-temper and an apology is made. Provocation from opposing counsel is a relevant consideration, but it is not a complete defence. The transcript of the proceeding, together with counsel’s explanations of her conduct, must be carefully examined in the context of all the surrounding circumstances including the important public interest that lawyers vigorously and courageously advocate for their clients.
Good faith and reasonable basis test
In applying the above principles to the facts of this case, the Appeal Panel had to determine the extent to which zealous defence counsel may impugn the integrity of opposing counsel or make allegations of prosecutorial misconduct. Some of the Appeal Panel’s comments in this regard are set out below.
 We agree with the parties’ articulation of the test. In our view, it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel unless they are both made in good faith and have a reasonable basis. A bona fide belief is insufficient; it gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions of opposing counsel. In R. v. Felderhof, Justice Rosenberg made reference to the well-known passage from Rondel v. Worsley where Lord Reid said, in part that, “[c]ounsel must not mislead the court, [and] he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession.”104 Justice Rosenberg applied that principle to casting aspersions on opposing counsel for which there was no reasonable foundation.
 In addition, even when a lawyer honestly and reasonably believes that opposing counsel is engaging in prosecutorial misconduct or professional misconduct more generally, she must avoid use of invective to raise the issue. That is, it is unprofessional to make submissions about opposing counsel’s improper conduct, to paraphrase Justice Campbell, in a ‘repetitive stream of invective’ that attacks that counsel’s professional integrity.105