Evgeny Orlov has been struck off by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after it found him guilty of making allegations about a High Court Judge that were either false or made without sufficient foundation.

In [2013] NZLCDT 45, delivered on 18 October 2013, the tribunal – by a majority of four to one – found that five charges of misconduct brought against Mr Orlov were proven.

The first charge related to a letter dated 6 August 2008 Mr Orlov wrote to the then Chief High Court Judge, Justice Randerson.

Mr Orlov’s letter alleged actual and/or apparent bias on the part of Justice Harrison towards Mr Orlov personally.

The allegations also included wide ranging criticism of the Judge made in strong language which gathers momentum as the document progresses.

“On our view of it, the document and its attachments, including the covering letter, clearly attacked the reputation of the judge in terms which suggested he was unsuitable to continue in office,” the tribunal said.

Further, in the letter to the Chief Judge, Mr Orlov describes the action of Justice Harrison in referring a copy of his decision in one matter to the Law Society as being “improper, unsubstantiated by any particulars or matters and therefore frivolous and vexatious”.

Also, Mr Orlov claims: “There is an appearance of bias that leads to an inference that you are not properly performing your judicial function and rather attempting to punish us for our beliefs or our ethnicity or both.”

Another charge relates to statements made in the originating application for permanent recusal of Justice Harrison in cases where Mr Orlov or a colleague were involved.

Some examples of the statements referred to in the tribunal’s decision are:

• that the judge conducted himself in an actual or apparently biased manner “which is continuing in all cases ...” where the applicants appear or are on the record;
• that Justice Harrison had “treated one or both of the applicants disproportionately”;
• “that Justice Harrison had filed untenable and insufficiently particularised complaints with the Law Society, which were frivolous, malicious, vexatious, vindictive, oppressive, and/or punitive in nature”;
• that Justice Harrison had “oppressed one applicant’s right to free speech, political opinions and freedom of association”;
• that Justice Harrison had attempted to remove Mr Orlov and his colleague as lawyers in a collateral proceeding in which he was not presiding;
• that Mr Orlov’s and his colleague’s “human rights are being violated arbitrarily and/or capriciously”, that these breaches “are ongoing” and “the severity of the breaches is likely to increase”; and
• that Justice Harrison is “discriminating against” one or both applicants.

Another charge dealt with comments made in a notice of application for special leave to appeal to the Supreme Court in a client’s case. These statements largely repeated the allegations made in respect of the originating application for recusal.

Allegations about Justice Harrison made in a notice of claim and accompanying letter filed in the Human Rights Review Tribunal in March 2009 were the subject of another charge.

The allegations made about the judge were along similar lines already described in respect of the other charges. However, Mr Orlov also alleged specific breaches of the Human Rights Act 1993 and of the New Zealand Bill of Rights Act 1990.

Another charge arose out of the complaint to the Judicial Conduct Commissioner.

“We have no difficulty in accepting that a lawyer must be free to make such a complaint in the proper manner,” the tribunal said.

However, by once again using, in his complaint, such language as that the judge’s judgments “knowing, maliciously and recklessly destroyed his reputation”, Mr Orlov had approached the matter from a purely speculative and subjective perspective, rather than an objective and proper laying of a foundation for making such serious allegations as to reprehensible behaviour.

The tribunal noted that the term “dishonourable” was considered in the decision of Shahadat v Westland District Law Society [2009] NZAR 661. This said [at 31] that “dishonourable” behaviour may cover a wide range of disgraceful, unprincipled, wrongful acts or admissions comprising blatant breaches of duties owing by a professional person.

“In the section of this decision in which each of the charges [against Mr Orlov] is analysed, we have, in relation to the regulated services charges found that this description, unfortunately, fitted the behaviour of this practitioner,” the tribunal said.

“Mr Orlov, in making these statements about the learned Judge, expressed himself in an unrestrained, unprofessional, and at times outrageous manner.

“In doing so he has utterly failed in his duty to his profession, to the Court and indeed to the public in terms of their reasonable expectations of his behaviour.

“He has shown himself to be incapable of viewing the matter objectively or of conceding that any actions on his part could have properly lead to a Judicial Officer reprimanding him or being concerned about the standard of his advocacy for Mr Orlov’s clients,” the tribunal said.

The dissenting tribunal member said: “In my opinion, the NSC [National Standards Committee] has not proven that Mr Orlov has presented his concerns ‘without foundation’. There is an insufficiency of evidence presented by the NSC to lead me to a conclusion that the concerns raised by Mr Orlov were false or without foundation. To me, in the plain sense of the wording, the Orlov complaints had foundation.”

He also commented that there were no complaints from the public within the charges laid.

In its decision on reasons for the strike-off penalty, [2013] NZLCDT 52, delivered on 19 November 2013, the tribunal noted that: “Mr Orlov’s response has been remarkable in its level of disrespect, obstructiveness and discourtesy to his profession as a whole and to bodies charged with the responsibility of upholding professional standards.

“In the course of various applications to higher courts, Mr Orlov has been told by every court in the land that he needs to focus on the substance of the case rather than taking endless procedural points.

“Notwithstanding those clear messages, in conducting the proceedings before us he ignored that advice, took every possible procedural point, valid or otherwise, and behaved in the manner already described in this decision.

“It would appear that he simply does not grasp the issues or understand that his professional standards are in question.

“He made comments which were, in turn, scathing about the Court of Appeal, High Court judges, the tribunal and the Law Society, therefore his profession. This has continued over a period of some years,” the tribunal said.

In terms of consistency of penalty, in particular comparing Mr Orlov’s conduct and overall behaviour with that of two other practitioners struck off in recent times, the tribunal considered that strike off was a “proportionate and consistent response to be imposed by the tribunal, and that nothing less can reflect the seriousness of his misconduct”.

The tribunal ordered Mr Orlov to pay the Law Society $96,905.22 costs. “We consider a substantial award of costs such as is sought is manifestly justified in the light of Mr Orlov’s conduct of these proceedings,” the tribunal said.

Mr Orlov has filed an appeal against the tribunal’s decision.