New Zealand Law Society - Lawyers Complaints Service: High Court quashes strike off

Lawyers Complaints Service: High Court quashes strike off

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The High Court has quashed an order striking off Evgeny Orlov.

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal struck Mr Orlov off in November 2013 after it found him guilty of making allegations about a High Court Judge that were either false or made without sufficient foundation (see LawTalk 837, 14 March 2014, p33).

In [2014] NZHC 1987, Mr Orlov appealed both against his conviction and against the strike-off penalty.

In their 21 August judgment, Justices Ronald Young and Simon France dismissed the appeal against conviction, but allowed the penalty appeal.

“Mr Orlov’s challenge to the decision to strike him off the roll of barristers and solicitors centred primarily on the right to freedom of expression,” Justices Young and France said.

“He considered his various allegations were well-founded, but if they were not, then he submitted that they should be protected speech as long as they were genuinely held opinions. He also contended that objectively much of what he said was not of a sufficient seriousness to merit being struck off.

“We partially agree. We are of the view that some of the allegations, such as bias, are not properly the subject of charges at this level. However, other allegations which were extreme in their nature or which alleged improper motives on the part of the Judge, have potential to significantly undermine public confidence in the administration of justice.

“This is particularly so when the allegations come from within, such as from a lawyer. It is a reasonable requirement that members of the profession have a proper foundation before making such claims.

“We have concluded that Mr Orlov has not shown, and indeed for many allegations has not really attempted to show, that there is a proper foundation for these claims. Indeed in our view there is no foundation at all, proper or otherwise. Accordingly, in relation to these claims, we agree with the Disciplinary Tribunal that they represent disgraceful conduct within the meaning of the Act.

“In relation to penalty, we have concluded that striking off is a disproportionate response in the circumstances of the case.

“We place weight on the fact that the practitioner’s offending conduct consists only of speech, and is directed against a member of the judiciary. It does not involve mistreatment of clients or their money.

“We also place weight on this being a first ‘offence’ for conduct of this type. Mr Orlov can now be under no illusions as to the standards rightly expected of all members of the profession, and that he will need to modify how he goes about airing his grievances.

“Since Mr Orlov has been subject to the sanction of striking off for some period, it is not necessary for us to consider an alternative penalty,” Justices Young and France said.

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