Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987; [2015] 2 NZLR 606 (21 August 2014)

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UNDER	the Judicature Amendment Act 1972 and Declaratory Judgments Act 1908
IN THE MATTER	of an application for judicial review of decisions of the Lawyers and Conveyancers Disciplinary Tribunal
BETWEEN	EVGENY ORLOV Applicant
AND	THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL First Respondent
AND	THE NATIONAL STANDARDS COMMITTEE NO 1 Second Respondent
_AND

ORLOV v THE NZ LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2014] NZHC 1987 [21 August 2014]

roll of barristers and solicitors is quashed. No alternative sanction is imposed.

A _B	Background _{Further Context}	[3] _[21]
Conviction Appeal and Judicial Review [22]
A	Issue One : Amendment of Charges	[22]
B	Issue Two : Late Filing of Evidence	[37]
C	Issue Three : No Case to Answer	[54]
D	Issue Four : Absolute Privilege Attaching to Charged Statements	[70]
E	Issue Five : The Admissibility of Judgments	[78]
F	Issue Six : Freedom of Expression	[81]
G	Issue Seven – The Appeals	[94]
	The correct charges – the meaning of “unconnected with the provision of regulated services”	[96]
	2 Is Mr Orlov responsible for the charged conduct?	[116]
	3 The charges considered	[122]
	a Letter to the Chief High Court Judge	[131]
	b Originating application filed in High Court	[142]
	c Application filed in Supreme Court	[147]
	d Complaint to Human Rights Review Tribunal	[160]
	e Complaint to Judicial Conduct Commissioner	[167]
H	Issue Eight : Composition of the Disciplinary Tribunal and Bias	[176]
I	Conclusion	[183]

III Sentence appeal [184] A Procedural Issues [185] B Reasons for Striking Off [187] C Our Analysis [189]

professional misconduct were laid against him by the National Standards Committee of the New Zealand Law Society (“the Committee”).¹All charges stem from statements he made about Harrison J, who was then a High Court Judge based in Auckland. Following a five day hearing before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Disciplinary Tribunal”), Mr Orlov was found guilty of misconduct.²It was held that he had made statements that were false or made without sufficient foundation, and that the nature of the statements meant he was not a fit and proper person to be a lawyer. Following a separate penalty hearing, Mr Orlov was struck off.³

[2] Mr Orlov has appealed both decisions, and has also filed judicial review proceedings. All matters have been heard together.⁴Mr Hollyman was appointed amicus, and we record our appreciation of his assistance.

[3] By way of background, we observe there was clearly tension between Mr Orlov and Harrison J. It is plain from the record that Harrison J had concerns about Mr Orlov’s approach and competency. The manifestations of these concerns (interspersed with Mr Orlov’s responses) were:

(a) On the first occasion of contact, Harrison J warned Mr Orlov that he considered him to be in contempt of court. Matters were stood down to allow Mr Orlov to obtain assistance from senior counsel who

⁴There were various applications made by Mr Orlov at the start of the hearing, including an unsuccessful application for adjournment. These matters are addressed in a separate ruling being issued concurrently with this judgment.

(b) On the second occasion, when declining an application by Mr Orlov for adjournment, Harrison J directed that his adjournment judgment be sent to the Professional Standards Director of the Auckland District Law Society. Then in the substantive judgment Harrison J put Mr Orlov on notice of a risk of a personal costs award.

(c) Following this hearing, Harrison J wrote to the Auckland District Law Society requesting it to inquire into Mr Orlov’s competency and qualifications.

(d) There was a two year hiatus prior to any further contact. However, on this occasion Harrison J again directed that his substantive judgment, striking out judicial review proceedings, be referred to the Professional Standards Director of the Auckland District Law Society. His Honour adjourned the costs issue for consideration as to whether personal costs should be ordered against Mr Orlov and Mr Deliu (a lawyer associated with Mr Orlov).

(e) It was at this point Mr Orlov wrote to the Chief High Court Judge requesting that he direct that Harrison J not be allocated to any case involving Mr Orlov or his firm. Justice Randerson declined. Comments made by Mr Orlov in this letter and an accompanying document were the subject of charges 1 and 2.

(f) Mr Orlov and Mr Deliu then filed an originating application in the High Court seeking orders that the Registry not allocate any of their cases to Harrison J. Mr Orlov filed an affidavit in support. This application and the accompanying affidavit underlie charges 3 and 4.

(g) Justice Harrison then made an award of personal costs against the two lawyers in relation to the case discussed at (d) above.

(h) Mr Orlov and Mr Deliu filed an application in the Supreme Court for leave to appeal the costs award. The contents of this application are the basis of charge 5.

(i) Mr Orlov around this time also made his complaint to the Judicial Conduct Commissioner. The statements made in that complaint underlie charges 7 and 8.

(j) Next, a case of Mr Orlov’s was called before Harrison J in a Chambers list. Justice Harrison directed the resulting judgment to be referred to the Professional Standards Director of both the Auckland District Law Society and the New Zealand Law Society.

(k) Mr Orlov then made a complaint to the Human Rights Review Tribunal complaining of discrimination. The nature of the comments made there underlie charge 6.

[4] The complaints made by Mr Orlov largely follow a similar pattern. Mr Orlov would identify in relation to each of the cases he had before Harrison J, the things he thought were wrong with what the Judge did. We refer to these as the primary facts (as alleged by Mr Orlov). There were two categories of primary fact⁵– first, descriptions of what is said to be improper conduct by Harrison J and second, the circumstances of the actual case. Mr Orlov at times described these circumstances in detail to illustrate what he regarded as bad decision-making by the Judge.

[5] The primary facts having been set out (improper conduct and bad decisions), Mr Orlov then ventured opinions on why these things were occurring. Why did the Judge query his competence, ask about his qualifications, get angry at him, and make these poor decisions which caused harm to his clients? Mr Orlov’s answers vary slightly but have a broad consistency. In his view the Judge was biased against him because the Judge did not like Mr Orlov, and did not like foreign lawyers. It is also said Harrison J discriminated against him because of his political beliefs, these

_{seeming to be that Māori were disadvantaged and human rights were
important. Mr}

Orlov went further again and suggested that these prejudices impacted on the substantive decisions. He suggests, for example, that the bad decisions in one case are explicable by the fact that Mr Orlov’s client was Russian as is Mr Orlov.

[6] The five charges laid by the Committee relate to five separate occasions on which Mr Orlov wrote complaints about Harrison J. These are the events described above in sub-paras (e), (f), (h), (i) and (k) of para [3].

[7] The charges focus on the manner in which the complaints were expressed. Not content with identifying and objecting to conduct, Mr Orlov attributes both extreme characteristics (for example, maliciousness, vindictiveness and spitefulness) and ulterior motives to that conduct. Mr Orlov variously claims the Judge to be motivated by spite, by a desire to punish Mr Orlov, by a desire to ruin his career, and by dislike of Mr Orlov based either in prejudice against his political opinions (pro human rights, and believing Māori to be oppressed) or his ethnicity (Mr Orlov is of Russian origins, but came to New Zealand as a young boy). It is at times alleged

Harrison J was racist against Māori,⁶is “a danger to the public” and that the

[8] The five charges allege that Mr Orlov, by these comments and many others, is guilty of misconduct.

[9] Alternative charges were laid in relation to each of three of the communications. The Lawyers and Conveyancers Act 2006 (“the Act’), in its definitions of misconduct, differentiates between conduct whilst providing regulated services,⁷and conduct otherwise.⁸For the former, the test is whether the conduct would be regarded as disgraceful or dishonourable by lawyers of good standing.⁹

However, for activity done outside the work environment, the test is whether the

_{conduct means the person is not a fit and proper person to engage in
practice.}¹⁰_There

was some uncertainty as to the proper classification of Mr Orlov’s activity, hence the

[10] The full set of charges are listed as an appendix but we set out charge 1 to illustrate how the matter proceeded. This relates to the initial complaint Mr Orlov made to the Chief High Court Judge:

The National Standards Committee charges Evgeny Orlov, lawyer of Auckland, with misconduct that would justify a finding that he is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer in terms of s.7(1)(b)(ii) of the Lawyers and Conveyancers Act 2006, by virtue of making allegations about the Honourable Justice Rhys Harrison that were either false or were made without sufficient foundation, in his letter dated 6 August 2008 sent to the Chief High Court Judge, the Honourable Justice Randerson.

1.1 that Justice Harrison acted towards him and continued to act towards him in a manner of actual and/or apparent bias;

1.2 that by Justice Harrison’s direction in paragraph 30 of His Honour’s judgment dated 14 November 2005 in [G] v Chief Executive Officer of the Department of Child Youth & Family Services & Another (CIV2005-404-424, High Court Auckland (“the Gibb Proceeding”) Justice Harrison improperly referred Mr Orlov’s conduct in that case to the Professional Standards Director of the Auckland District Law Society;

1.3 that a miscarriage of justice had occurred due to the attitude and intemperance of Justice Harrison in the [G] Proceeding;

1.4 that Justice Harrison subjected him and his client to highly improper, inflammatory and intemperate criticisms;

1.6 that Justice Harrison subjected him and unspecified colleagues to improper persecution and discrimination;

1.7 that Justice Harrison was attempting to punish him and his colleagues for their beliefs or ethnicity, or both;

1.8 that Justice Harrison intentionally and maliciously caused him unspecified harm, and had conducted himself as a judicial officer in an atmosphere of horrific denigration and insult, with uncontrolled and unpredictable rage against him.

1.9 by making the allegations as aforesaid Evgeny Orlov breached his over-riding duty as an officer of the Court, in breach of Rule 2.1 of the Lawyers & Conveyancers Act (Lawyers: Conduct and Client Care) Rules

1.10 by making the allegations as aforesaid Evgeny Orlov acted in a way that undermined processes of the Court and the dignity of the judiciary, in breach of Rule 13.2 of the Conduct and Client Care Rules.

[11] It can be seen that the statements (particulars) that are said to be false or without sufficient foundation focus in the main on the labels that Mr Orlov attaches to Harrison J’s conduct, and on the inferences that Mr Orlov draws from those primary alleged facts. The underlying primary facts are themselves generally not mentioned in the charges. Notwithstanding this, Mr Orlov believed the key to the case was these facts. His view was that unless these underlying claims could be shown to be false, he could venture whatever opinions he wanted about them and attach whatever labels he wanted to them as long as he believed that what he was saying was correct.

[12] This focus on the primary underlying facts led Mr Orlov both to challenge the sufficiency of the charges, and to claim he was entitled to more detail about which of these primary facts was being said by the Committee to be wrong. This detail was never forthcoming, no doubt because the Committee was focusing on the correctness not of the primary facts but of the claims Mr Orlov made based on them.¹¹

Consistent with this approach, the Committee did not file specific evidence designed

to prove the falsity of the primary facts. There was no recording or transcript available for most of the hearings, and the Judge’s decisions could speak for themselves as to their soundness or otherwise.

[13] Mr Orlov’s belief that the prosecution had to disprove his primary facts, and his recognition that it was not planning on doing so, led him to vigorously pursue a no case to answer submission. He wanted that application heard prior to the hearing but the Disciplinary Tribunal declined. The Disciplinary Tribunal considered and

_{dismissed the no case to answer application after the prosecution had
called all its}

¹¹This challenge was rejected by the Court of Appeal but in relation to differently worded charges than those which Mr Orlov would ultimately face. Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562 at [131]–[132].

evidence. The sufficiency of the particulars, and the Disciplinary Tribunal’s handling

of the no case to answer application, are two of the judicial review challenges.

[14] Mr Orlov’s third challenge concerned the decision by the Disciplinary Tribunal to allow the Committee to amend the charges only a month before the hearing. Initially, the allegation made in the charges was that the statements set out in the particulars were “false and scandalous” and that Mr Orlov at the time of making them knew they were false, or was at least reckless as to their truth. The changes made shortly before the hearing were significant. The label of scandalous was removed, and the claim that the statements were false was protected by the addition of an alternative, namely that they were “made without sufficient foundation”. Finally, the allegation that Mr Orlov knew the statements were false or was reckless about that was also abandoned. Mr Orlov submits on the judicial review that he was prejudiced by these late amendments and should have been given more time to adjust.

[15] These then are the three main claims of unfairness made on the judicial review – the lack of particulars, the handling of the no case to answer submission and the late amendments. There are, however, other matters raised. In particular, prejudice is said to have arisen from the decision of the Disciplinary Tribunal to allow the prosecution to, at a late stage, introduce further evidence. This evidence consisted of two bundles of documents, and two affidavits from lawyers who were present at two of the hearings and who would proffer a different view of Harrison J’s conduct from that being advanced by Mr Orlov.

[16] In relation to the appeal against the finding that the charges were proved, Mr Orlov disputes that the statements he made, whether soundly based or not, can satisfy the charges. This proposition is advanced, at a broad level, on the basis that the statements were protected as free speech, and at a more specific level, on the basis that the statements he made, if not made in bad faith, cannot satisfy the level of charge being brought against him. In addition to these broad challenges, Mr Orlov also makes specific challenges. He says, for example, that it has not been proved he is sufficiently connected to some of the documents to be charged in relation to them. Challenge is also made as to whether the capacity in which Mr Orlov was acting was

personal (Mr Orlov’s claim) or as a practitioner. There are also other claims of

[17] Finally, Mr Orlov appeals against the sentencing decision to strike him off the roll of barristers and solicitors.

[18] There is a great deal of overlap between the judicial review application, and the appeal. Accordingly, we address the issues in what appears to us the most logical order, regardless of whether their origin is the review or the appeal.

[19] We note for the record that of the three day hearing before us, Mr Orlov was allocated two days to present his case. At his insistence, the bulk of this time was taken up with the judicial review challenges. Mr Orlov was determined to analyse the underlying cases in which the tension between Harrison J and he emerged. The primary purpose seemed to be a desire to establish Mr Orlov was right and his Honour was wrong on the merits.

[20] We expressed concern at various points with his focus and suggested Mr Orlov address more substantive issues and indeed his appeals. In our view Mr Orlov had ample opportunity within the two days to present his case. The manner in which that time was used was Mr Orlov’s informed choice.

[21] With some hesitation we reproduce the Tribunal’s summary of the court cases in which Harrison J and Mr Orlov were involved. Whilst it lengthens this judgment, we have come to the view Mr Orlov’s complaints are so interconnected it is impossible to consider them without detailing the underlying cases. Mr Orlov complains about this summary, feeling it is incomplete and does not give his point of view, but we are satisfied it adequately reviews the background:

Mr Orlov’s first contact with Justice Harrison appears not to have been in his capacity as counsel but in connection with an application for Habeas Corpus made on behalf of Mr C, at the High Court at Auckland on 22 August 2005. An order was sought to secure compliance by Ms R with Orders of the Family Court relating to the shared custody of a child. The application for Habeas Corpus sought to have the child delivered to the High Court at Auckland. Orders had previously been made by consent for shared custody. Ms R was refusing to comply. Mr Orlov had appeared before Judge Smith in the Family Court at Tauranga on 28 July 2005 resulting in a judgment dated

29 July 2005 in which the Judge directed Child Youth & Family to uplift the child from Ms R and return him to Mr C’s care, on directions that Mr C lived

29 August 2005 granted orders by way of Habeas Corpus to the effect that the child be delivered by Child Youth & Family Services.

Mr Orlov had previously applied (ex parte) to the High Court for interim relief, which had been refused by Ellen France J. When Mr Orlov appeared in Justice Harrison’s Court on the Habeas Corpus matter it was in result of being served with that application – in response he filed a memorandum informing the Court that he was not acting for Ms R in the Habeas Corpus matter. Mr Orlov says that Harrison J became furious and that he threatened to imprison him for contempt unless he advised Ms R to appear in Court. Mr Orlov contacted Dr Rodney Harrison QC who appeared in Court at short notice. Mr Orlov undertook to inform his client of the Habeas Corpus writ.

When the case was before Harrison J no finding had been made against the father – but allegations of abuse had emerged. A finding was made by Judge Sommerville in December 2005 that the father had abused two other children, although the police had declined to charge him. The Judge could not decide if he had abused the child in question. Mr C appealed but it was dismissed; there was a cross-appeal brought, in which Mr Orlov acted, and which ranged widely and was trenchantly critical of the Family Court and the Child Youth & Family Services. Later, there was the sequel before Judge Sommerville in the declaration proceedings.

The statement of Rodney Harrison QC says that Harrison J either indicated (or Dr Harrison QC formed the impression) that Harrison J had “had a re-think” and did not pursue the issue of contempt further (p2 statement). The Committee also refers to the reply affidavit of Simon Jefferson QC who recalls Harrison J responding “firmly” to Mr Orlov and did not recall any “unjudicial or excessive” actions of Harrison J.

¹²In these cases statutory prohibitions apply to the identity of alleged victims, and some parties.

It appears that the next occasion on which Mr Orlov appeared before Justice Harrison was in the proceeding [G] v Chief Executive Officer of the Department of Child Youth & Family Services and Barnardos New Zealand. This proceeding involved an appeal against orders made by the Family Court. In the Family Court Ms [G] had been represented by another lawyer. The hearing of the appeal was allocated for 14 November but on 28 October Mr Orlov filed a memorandum saying that he was not “on the record”. But in an affidavit sworn in support of his application for adjournment Ms [G] advised that she had raised funds and that Mr Orlov was in receipt of instructions. Another adjournment was sought on 9 November 2005 which was dismissed by Justice Cooper, in the absence of a formal signed document and affidavit in support. Mr Orlov appeared at a hearing on

14 November before Justice Harrison and renewed his application for adjournment. Numerous grounds were offered by Mr Orlov for the adjournment, which are set out in paragraphs 11 to 24 of the judgment leading to dismissal of the application for adjournment.

During the course of argument before Harrison J the Judge formed the opinion that the appeal was misconceived and that this was as a result of Mr Orlov’s lack of competence. The appeal was against the exercise of a statutory discretion. The disposition of the lower court proceeding and the appeal turned on the first and paramount consideration of the child’s welfare and interest.

The Judge was critical of Mr Orlov’s lack of legal analysis and misconceived arguments, in particular the arguments relating to the lack of investigation into a medical condition of Mr Orlov’s client, which he rejected, along with other arguments, particularly rights based arguments that had no foundation. The appeal was dismissed (1/187). The Judge put Mr Orlov on notice that he may be exposed to costs. This judgment was upheld on appeal.

Mr Orlov and his client Ms [G] (at 1/199 to 1/208) recorded their dissatisfaction with the treatment of Mr Orlov by the Judge describing that treatment variously as discourteous, inhumane, obnoxious, arrogant, and rude. Mr Orlov felt aggrieved by the Judge pointing out his lack of knowledge of the applicable legal principles which Mr Orlov interpreted along with interruptions made during submissions to be undermining of him in the eyes of his client and aggressive. Connected proceedings were heard by other High Court Judges. The Court of Appeal judgment in [G] upheld Harrison J’s reasoning.

The Committee referred to the evidence of Ms Jennifer Irving, counsel for child in this matter, as to her recollection of the hearing before Harrison J. She does not recall discourtesy to Ms [G] on the part of Harrison J, nor any screaming by the Judge. She does recall Harrison J enquiring into Mr Orlov’s qualification following discussion “including the issues or Mr Orlov’s evidence, unfamiliarity with the papers, process or statute”.

The next proceeding in which Mr Orlov was involved relating to Justice Harrison was on behalf of his clients Mr and Mrs [L]. This proceeding was an application for judicial review of the Family Court decision relating to interim custody which resulted in the application for review being struck out. The decision to strike out the application review was in some part reversed by the Court of Appeal. Harrison J also ordered costs against Mr Orlov and Mr Deliu and an appeal against that Costs Order succeeded when brought by Mr Deliu, but Mr Orlov settled the question of costs. Despite the successful appeal the proceeding was discontinued by the [L]s. What is important to note is that the Court of Appeal recorded that the appellants in that case had been “granted an indulgence” (by Harrison J). The Court confirmed that the statement of claim “contained much that was legally wrong”. The application for judicial review was reinstated on terms, with the Court of Appeal holding that neither the High Court nor the respondent should have to deal with “those parts of the existing statement of claim which are legal mumbo-jumbo and which bear no relation to the true complaint the [L]s’ made”. Earlier in the judgment the Court of Appeal had agreed with most of what Justice Harrison had held holding that Harrison J’s description of the statement of claim as “a jungle of conceptional confusion” was a description that was “entirely justified”. The original six lines of attack had been reduced to four by virtue of a strike out judgment of Winkelmann J on 4 March 2008, leaving four “supposed causes of action, none of which was coherently pleaded”.

Mr Deliu applied for Justice Harrison to recuse himself from delivering any further judgments in the case. This coincided with a separate originating application brought by both of them for general recusal. Justice Harrison refused the recusal motion in the [L] case in His Honour’s costs judgment dated 13 October 2008.

The originating application brought by Mr Orlov and Mr Deliu was discontinued and Mr Orlov and Mr Deliu apologised to the Judge by letter dated 4 December 2008. But it was not all over.

Mr Orlov and Mr Deliu appealed against the costs judgment. Records indicate that Mr Orlov abandoned his appeal after the parties reached a settlement. The costs order against Mr Deliu was overturned by the Court of Appeal. The Court of Appeal did however endorse Harrison J’s concerns about the conduct of the case.

Mr Orlov next appeared before Justice Harrison in Hung v Tse High Court Auckland CIV 208-404-8568. Mr Orlov has referred to this as the ‘Parts Imports’ case because it related to an attempt to bring a derivative action by a director and shareholders in Parts Imports Ltd, a Company that had been placed in liquidation. Such actions may only be brought with the leave of the Court, and where the Company is in liquidation the liquidator must be served with the leave application.

9 February 2009 for which a transcript is available. This is the only transcript which has been provided to the Tribunal in respect of the four

In short, Mr Orlov had not joined the trustees of the trust shareholder by name (which was then required); had not joined the Company (in liquidation) or it seems served it; failed to address the grounds for leave; failed to recognise the existence of another claim based on the same or similar causes of action, and failed to seek directions under s 284 of the Companies Act (required as Parts Imports Ltd was in liquidation, so either the liquidator or the court had to approve the contemplated action). There were other procedural problems. Harrison J struck out the proceeding and initiated an inquiry as to who was instructing Mr Orlov or had authorised filing of the claim (as the memorandum failed to show a filing solicitor but instead showed Mr Orlov, then a barrister, as filing the claim, which he was not entitled to do – see old Rule 41); the Judge referred the judgment to the Law Society.

Mr Orlov had criticised Harrison J’s questioning of him as to whether he had an instructing solicitor for these proceedings. The Committee submitted that it is clear from the record that Harrison J had a basis for enquiring into this issue.

2 September 2013. On 18 July 2013 the Committee applied to amend the charges. Mr Orlov filed a notice of opposition on 29 July 2013. Without, as we understand it, proffering Mr Orlov an opportunity to file submissions or be heard on the topic, the Disciplinary Tribunal issued a decision on the papers on 6 August 2013. The amendments were allowed, the Disciplinary Tribunal being of the view that:

... with about four weeks until the start of the hearing, there is nothing in the amendments which would prejudice Mr Orlov.

[23] Mr Orlov challenges this decision, both as to the process that was followed and what he claims to be the prejudice resulting.

[24] Concerning the process, we consider it was flawed. The application to amend was made two years and two months after the charges were initially laid, and less than two months before the hearing was to start. There had been several High Court decisions, and a Court of Appeal decision, all based on the existing charges. Further, there had been a direction five months earlier that the Committee file any amended charges by 26 February 2013. At that time Mr Pyke had advised the Disciplinary Tribunal that there would be no application to amend the charges.

[25] Moreover, by the time of the amendment application, the Disciplinary Tribunal knew that Mr Orlov’s counsel of choice had been debarred from acting, and that he was now representing himself. These matters together merited a serious inquiry into the proposed changes and their possible effect. We also consider that prosecution counsel’s memorandum accompanying the application was inadequate. Whilst it described the proposed changes it did not identify the reason for them or the possible implications. The Disciplinary Tribunal, even putting to one side Mr Orlov’s opposition, was not in a position to assess the application on the papers.

[26] Mr Orlov should have been given an opportunity to make submissions. His Notice of Opposition contained a series of points, but does not at all indicate that he considered them sufficient to allow the Disciplinary Tribunal to proceed without more. The Disciplinary Tribunal is obligated to accord natural justice and in this respect failed to do so.

[27] There is no doubt these were significant changes – much more so than counsel’s memorandum suggested or the Disciplinary Tribunal appreciated given how it dealt with and reasoned the matter. The original charges accused Mr Orlov of:

... making statements against Harrison J that were false or made without sufficient foundation.

[29] Two obvious differences can be seen. The Committee has no longer given itself the task of proving falsity; now proof of an insufficient basis for making the claims will suffice. Second, it is no longer alleged that Mr Orlov knew the statements were false, or was reckless as to that fact.

[30] We are satisfied that the nature of the new charges was correct and appropriate. The new wording reflects the decision of the Full Court in Gazley v Wellington District Law Society.¹³There, having reviewed overseas authority, the

... bring with them a professional responsibility not to make allegations “without a sufficient basis” or “without reasonable grounds”. This responsibility applies irrespective of the persons against whom allegations are made.

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information.

[32] There was much sense in the change being made by the Committee. Notwithstanding the extreme nature of Mr Orlov’s allegations, falsity is difficult to objectively prove when the Judge, properly, is not available as a witness. The allegations are generally about matters that are not readily susceptible to proof, especially absent a denial from the person impugned. It is not enough to resort to reasoning such as a Judge would not have such motives, or on its face the judgment

_{does not disclose that it was motivated by underlying prejudice. By
contrast, a}

charge which puts in issue the basis that the practitioner had for making the statements, appropriately places the focus on the practitioner’s conduct.

[33] However, the appropriateness of the amendment does not alter the fact that it was a significant change being made at a late stage. The task for the Committee certainly became more straightforward but that is no reason in itself to hold it to its original formulation. The key issue, as it inevitably is in these situations, is whether Mr Orlov was prejudiced by the timing of the change and the denial of an adjournment.

[34] Mr Orlov’s main claim to prejudice is that the change meant he now had to prove his primary facts. He wanted an adjournment so he could gather together such evidence as might be available to show what happened on the hearing days in issue. This submission squarely puts in issue Mr Orlov’s analysis of the case. We consider his focus on the primary facts was incorrect and failed to recognise that the real issue was the legitimacy of the claims he was making based on those primary facts. Put simply, even assuming that things happened as Mr Orlov claims, what is the basis for saying that they stem from prejudice, racism and a malicious desire to harm Mr Orlov rather than from the fact that the Judge considered Mr Orlov was not displaying the basic knowledge and skills a client is entitled to expect from their lawyer?

[35] We are satisfied Mr Orlov was not prejudiced by the change. The particulars which identify the objectionable statements had not changed. Mr Orlov’s decision to ignore providing a justification for the pleaded statements and to focus on the primary facts was his choice. Further, in reality he has said all that can be said in support of the reasonableness of making these allegations. In each of the documents, and to the extent he chose to do so in his affidavit filed in the Disciplinary Tribunal, Mr Orlov has set out the basis for his claims. Whether that material provided a sufficient basis was a matter for analysis and submission. It did not require further evidence. Accordingly, despite a process breach in the handling of the amendment application, we do not consider prejudice has resulted.

[36] For completeness we record Mr Orlov’s submission that the Disciplinary Tribunal had no power to allow any amendment prior to the hearing. This submission seems to be based on the fact that reg 24 of the Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008 states that the Disciplinary Tribunal may amend charges at the hearing, if it considers it appropriate. This broadly worded power cannot be read, as Mr Orlov suggests, as only allowing amendments at the hearing. The Disciplinary Tribunal is entitled to set its own procedure. We are sure the provision is designed solely to emphasise that the Disciplinary Tribunal can amend as late as at the hearing if circumstances require.

[37] Mr Orlov complains of prejudice resulting from three separate issues concerning admissibility of evidence.

[38] The first relates to the Committee tendering two substantial volumes of documents shortly before the hearing. Permission to file the documents had been sought from the Disciplinary Tribunal at the same time as the application was made to amend the charges. The documents in issue all come from the court files of each of the four cases in which Mr Orlov and Harrison J were involved. The documents are collated by case, and indexed by provenance, but there is no commentary or any other indication of the use to which they would be put. Mr Orlov submits the documents were inadmissible and that he was prejudiced by their late provision and the manner in which they were provided.

[39] Dealing first with admissibility, reg 25(1) of the Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008 provides that evidence will only be admitted by affidavit unless leave is otherwise given. Such leave was sought and obtained, so the Committee was permitted to file them in the manner it did. The only other admissibility challenge could be relevance. However, at the time of admission, it was inevitable that case information from the files of these four cases would be seen as relevant. We are satisfied the documents were properly admitted. Again, the real issue is whether the timing of the evidence has occasioned prejudice.

[40] In assessing prejudice we bear in mind that Mr Orlov was representing himself and was plainly in a stressful situation. It cannot have been easy to be confronted relatively late in the piece with two further large bundles of documents, and without any real sense of what was going to be done with them. As it happens not much was, but we can accept it must have been a little overwhelming.

[41] We are satisfied, however, that no prejudice has been occasioned. The first point to note is that none of these documents were new to Mr Orlov. The documents were all from files in which he had been counsel and consisted of minutes, rulings, and memoranda. Mr Orlov objected to us that the files were incomplete but could not point to any significant omissions. We accept Mr Pyke’s advice that only the administrative or obviously irrelevant were not included.

[42] Whilst we have some sympathy for Mr Orlov’s situation in not being aware of the use to which the documents might be put, it is the reality of litigation. There is no obligation to detail in advance the intended use of documents properly before the Disciplinary Tribunal. No doubt many may have been used had Mr Orlov subjected himself to cross-examination, which he declined to do.

[43] In fairness to the Committee, we note that it was not through a lack of effort that the documents were only available at this stage. The Committee was unable to obtain Mr Orlov’s consent to access the files so was obliged to make formal applications in contested hearings for access. The entire process became somewhat drawn out. The detail is now irrelevant but we are satisfied the documents were produced as soon as they became available to counsel and were given to Mr Orlov at the same time. We also note that the process mandated by the Court was that, having accessed the file, the Committee return to Court to obtain permission to use the particular documents they had identified. This happened in June 2013 and that is the fairer point in time for assessing prejudice. Mr Orlov must have become aware at that time of what documents the Committee was seeking to use, and as we understand it, he had or could have had copies of them.

[44] The second group of documents about which challenge is made was a collection of documents taken from an Auckland District Law Society complaints file. As we understand it, it is the file that was started upon receipt of Harrison J’s formal request that the Society inquire into Mr Orlov. The documents were introduced through the Committee’s primary witness as part of re-examination.

[45] Mr Orlov objects because competency was not in issue in this hearing.¹⁶He submits that the file was therefore irrelevant and in any event prejudicial because what was put in was only part of the file. The admissibility challenges cannot succeed. As Mr Pyke points out, Mr Orlov had himself included many of the documents in an appendix to the affidavit he filed in the Disciplinary Tribunal. Second, Mr Orlov cross-examined the Committee’s witness about the Auckland District Law Society investigation. On ordinary principles, the Committee was entitled to introduce the material on re-examination.

[46] Concerning prejudice, we understand Mr Orlov’s main complaint to be that an opinion by Mr Illingworth QC, in which Mr Illingworth is said to have advised the Committee there was no case for Mr Orlov to answer on incompetence, was not included. We have not seen Mr Illingworth’s opinion but accept Mr Orlov’s point that potential unfairness results from an incomplete file being provided. However, we again are not satisfied that any prejudice has resulted. The hearing was not about competence, and Mr Illingworth’s opinion, whilst it might have given a more complete picture of the file, would not therefore have been of particular assistance.

[47] Generally our view is that this whole issue was rather unnecessary. The relevance of Mr Orlov’s competence is not apparent, and with hindsight the Committee would have been better to let it pass rather than seek to place more material before the Disciplinary Tribunal, most of it irrelevant to the actual issues to

¹⁶There are charges querying Mr Orlov’s competence, but they were severed off and have not yet

[48] The third evidential matter is the late filing by the Committee of evidence from two lawyers who were in Court on one or other of the occasions on which Mr Orlov appeared before Harrison J. The first witness was Mr Simon Jefferson QC who was present for aspects of the first case. Mr Jefferson recalls tension, and that Mr Orlov was insistent in making submissions, and that Harrison J was responding firmly. He says Harrison J could possibly be seen as being “robust” but did nothing that:

... resulted in my forming the impression that he had in any way exceeded the bounds of judicial propriety. That is something, I have no doubt, I would recall.

[49] The second witness was Ms Jennifer Irving, a practitioner of 35 years’ experience. Ms Irving was present as counsel for the child during the second of the cases in which Mr Orlov appeared before Harrison J. Ms Irving said she had no recollection of Harrison J either screaming or telling Mr Orlov to shut up. She has never seen or heard that happen and believes she would recall it if it did. Ms Irving recalls Harrison J querying Mr Orlov as to his qualifications, and generally remonstrating about errors in his presentation – for example, describing a Judge without any honorific. Ms Irving recalls that her surprise on the day was more at Mr Orlov’s presentation than anything done by the Judge.

[50] These affidavits were filed on the Friday preceding the hearing. The Committee’s view is that they are reply affidavits, filed in response to an affidavit filed by Mr Orlov four days earlier.

[51] There is merit in both sides on this. Mr Orlov had long made allegations about Harrison J’s conduct in these hearings. The people otherwise present in court were long known, and the Committee had chosen not to put in evidence from them as part of their positive case. There was little that was new in Mr Orlov’s affidavit. In our view the Disciplinary Tribunal could have declined to receive this evidence. On the other hand, Mr Orlov ultimately did file evidence, and at a late stage. If he chose to file then, and if the Disciplinary Tribunal chose to accept the evidence, as it did, then the Committee was entitled to seek to file evidence in reply.

[52] Turning to prejudice, the new witnesses were available for cross-examination. Mr Orlov declined, seemingly on the basis that he had had inadequate time to prepare. It is difficult to see how this could be so. Mr Orlov had made repeated claims about the hearings, and it would not be difficult for a litigator, as Mr Orlov is, to marshal together his various propositions and put them to the witnesses. Mr Orlov also complains he would have called other witnesses, but it was always open to him to do this whether or not the Committee filed evidence. Further, there are still no statements as to what these potential witnesses might have said, and we do not consider weight can be given to this aspect.

[53] Accordingly, none of the three issues Mr Orlov raised relating to the admissibility of evidence have occasioned prejudice.

[54] A key grievance of Mr Orlov is the Disciplinary Tribunal’s handling of his no case to answer application. The issue is entirely moot at this point. Mr Orlov’s application was eventually heard, albeit later than he wished but heard nevertheless. Further, at the heart of a no case to answer submission is a claim of lack of evidence. This is no different from the challenge made on the appeal – namely that he should not have been convicted on the evidence as it was. Finally, it was in any event a flawed application. It was based on the proposition that the Committee had failed to disprove any of Mr Orlov’s primary facts, and for reasons already given we do not consider the Committee was obliged to do that.

[55] We also observe that Mr Orlov has already challenged in this Court the Disciplinary Tribunal’s refusal to hear his application prior to the hearing. Justice Katz held, contrary to the Committee’s position, that the Disciplinary Tribunal could have heard the application early but that it did not have to.¹⁷Further, Her Honour disagreed with the parties’ analysis of why the Disciplinary Tribunal had refused to do so. It had been common ground between the parties that the

_{proper reading is that the Disciplinary Tribunal considered it
inappropriate to hear}

the application, not that it was saying it had no power to hear the application. There is no basis for us to revisit this earlier decision.

[56] The matter being moot, we limit ourselves to a few observations. In Hall v Wellington Standards Committee (No. 1), relying on New South Wales authority, it was concluded that, in appropriate cases a practitioner may submit at the end of the prosecution case that there is no case to answer.¹⁸In Hall v Wellington Standards Committee (No. 2),¹⁹Woodhouse J accepted that proposition, but considered the practitioner could have been required to elect whether to give evidence before the

[57] In our view, whilst we accept that there is scope for some form of no case to answer jurisdiction, it should be recognised as being very limited. This is not a criminal trial, and there is a long standing principle that practitioners are expected to co-operate.

[58] In Re C (A Solicitor), a full Court of Hutchison, Haslam and Leicester JJ

... did not accept Mr Arndt’s submission that a case before the Disciplinary Tribunal is to be dealt with on the same basis as a criminal trial. When a practitioner is charged before the Disciplinary Committee with professional misconduct and a prima facie case is made against him, the practitioner is not justified in simply saying the charge is not proved beyond reasonable doubt but must be prepared to answer the charge against him.

[59] The full Court noted that its conclusions mirrored those of the English Court of Appeal in Re A Solicitor where Scott LJ noted:²¹

Whether the proceedings can properly be described as quasi-criminal or not, in our opinion there is nothing in the statutes or rules which binds the disciplinary committee to the rules of criminal law.

¹⁸_{Hall v Wellington Standards Committee (No. 1)
[2012] NZHC 1723, [2012] NZAR 790.}

[60] To like effect are the observations of the New South Wales Court of Appeal in

From the earliest times, and as far back as the recollection of the individual judges of this Court goes, disciplinary proceedings in this jurisdiction in this State have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society ... was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issues at nisi prius. The jurisdiction is a special one, and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.

[61] In the judgment earlier referred to, Katz J made these observations with which we agree:²³

[29] Parliament has provided that the Tribunal is free to set its own procedure. Obviously it must do so in a way that is consistent with the discharge of its statutory functions and does not cut across any express statutory or regulatory provisions. Subject to those constraints, the Tribunal has been given a high degree of procedural flexibility in the exercise of its important statutory functions.

[30] As one Australian commentator has noted, this flexible procedure for a disciplinary tribunal means it is sui generis. It is neither strictly adversarial nor inquisitorial in nature, reflecting that disciplinary proceedings are aimed at protection of the public as well as discipline of the practitioner. As the New South Wales Court of Appeal observed in Malfanti v The Legal Profession Disciplinary Tribunal & Anor:²⁴

It is impossible in my view to lay down a rigid rule. The Tribunal is bound to mould its procedures to enable it efficiently and effectively to carry out its functions in an expeditious manner ....

[62] The procedures of the Disciplinary Tribunal that have been established under the current legislation are consistent with the long standing approach we have identified. Regulation 7 of the Lawyers and Conveyancers (Disciplinary Tribunal) Regulations 2008 requires a defendant practitioner within 10 days to file a response, and to identify what is disputed and what is not. Concerning the hearing itself, the

²⁴_{Malfanti v Legal Profession Disciplinary Tribunal
[1993] NSWCA 171 at 5.}

²⁵New Zealand Lawyers and Conveyancers Disciplinary Tribunal Practice Note at [7.1].

The purpose of the hearing is to clarify and test the evidence that will have been provided prior to the hearing by the parties and their witnesses. The focus of the process will be an inquiry on the part of the Tribunal.

[63] This view of the hearing accords with the authorities we have cited, and the current statutory scheme. Section 3 of the Act provides that the Act’s purpose is to protect consumers and maintain public confidence. This is achieved in part by providing for “a more responsive regulatory regime”.²⁶As part of that regime, a Standards Committee is empowered to appoint an investigator who can in turn require a practitioner to furnish information in any form.²⁷This emphasises the need for co-operation and the distinction of these disciplinary proceedings from a criminal matter.

[64] Against this background we consider the “no case to answer” jurisdiction should be seen as limited to matters akin to a strike out. It is for weeding out the obviously deficient (which should be rare) or those where some technical impediment can be argued. Otherwise it is proper that the practitioner fully participate thereby enabling the Disciplinary Tribunal to rule on the substance, and to give better effect to the Act’s purposes. The type of prolonged lead up to the hearing

[65] Obviously a practitioner cannot be made to co-operate, but consequences properly flow if the practitioner does not. Here, Mr Orlov belatedly filed evidence. He claimed that he had flagged that it was not available for consideration until he chose to open his case (which ultimately he did not do). Accordingly he submits regard could not be had to his evidence.

[66] Factually we are not satisfied that this is accurate. The document Mr Orlov pointed to as having the effect of reserving the availability of his evidence is actually silent on the point and Mr Orlov was left to contend it was his position by inference. We do not accept the inference is available, and accordingly the evidence was

²⁸Orlov v New Zealand Law Society [2013] NZCA 230; [2013] 3 NZLR 562 at [167] –[171].

[67] Further, without finally determining the matter, we are not persuaded it is open to a practitioner to make such a reservation. The obligation is on the practitioner to assist. He or she cannot be made to do so, but if they wish to file evidence it is in our view thereafter available for consideration. We also consider Mr Orlov was in breach of his obligations in not making himself available for questioning having chosen to file evidence.

[68] Finally in relation to this topic, we note that Mr Orlov submitted he had been made to file his evidence. However, it is clear that all the Chairperson did was set a final date by which evidence had to be filed if Mr Orlov intended to do so. This is not to be equated with compelling sometime to file.

[69] As already stated, Mr Orlov’s no case to answer challenge fails – and is, in any event, moot.

[70] Mr Orlov contends that the statements contained in the two court filings, and the statements contained in the complaint to the Judicial Conduct Commissioner, attract absolute privilege and cannot be the subject of charges. He relies on Teletax Consultants v Williams, a decision of the Court of Appeal.²⁹That case involved a claim of defamation arising from comments made in a complaint lodged with the relevant Law Society. The Court held that the comments attracted absolute privilege and accordingly the proceedings were struck out. In the course of its decision, the Court confirmed that the immunity extended beyond statements made in courts of

justice to those made before or to all bodies and tribunals performing the same functions. The privilege also went beyond actual testimony, and covered the earlier stages of the proceedings such as the filing of documents and the briefing of

³⁰Teletax Consultants, above n 20, at 701, applying Lincoln v Daniels [1962] 1 QB 237 (CA).

[71] This case does not assist Mr Orlov. There is no doubt that the immunity protects against claims in defamation, but limits have otherwise been recognised. For example, in Lai v Chamberlains the Supreme Court held that the immunity does not extend to actions in negligence.³¹The Supreme Court also noted many other situations connected to proceedings where the immunity had not extended such as claims based on missed time limits and failing to join a party at any early stage.³²

[72] Mr Orlov points to no authority to suggest the immunity extends to afford protection to a lawyer facing professional misconduct charges for statements made in proceedings. Such a situation would be inconsistent with the Lawyers and Conveyancers Act (Lawyers’ Conduct and Client Care) Rules 2008. Some parts of those Rules are directed solely to the obligations on lawyers involved in proceedings. It would be nonsense if one could not lay charges for breaches of these rules. There are also numerous authorities which by inference stand for the opposite proposition to that being contended for. In Gazley v Wellington District Law Society, the prosecution of Mr Gazley was in relation to proceedings he had filed alleging

suggestion immunity existed. We accordingly reject this submission as it relates to the documents filed in Court.

[73] The other document concerning which privilege is claimed is the complaint made to the Judicial Conduct Commissioner. We briefly cover the history underlying this claim of privilege. In the Disciplinary Tribunal, Mr Orlov, describing himself as a “politically persecuted person”, asked the Disciplinary Tribunal to make discovery orders concerning:

(a) all correspondence between the Judicial Conduct Commissioner and the New Zealand Law Society; and

[74] The Judicial Conduct Commissioner objected, submitting in the alternative that the Disciplinary Tribunal lacked the power to make such orders, and that s 19 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 imposed obligations of confidentiality on him. He claimed that requiring him to be a witness would be contrary to those duties.

[75] The Disciplinary Tribunal agreed. It considered that issuing a summons would undermine the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. It also agreed that it had no power to otherwise order third party discovery, and accordingly Mr Orlov’s applications failed. It seems to be this decision that underlies Mr Orlov’s submission concerning his complaint. The proposition Mr Orlov makes is that if the Judicial Conduct Commissioner’s files are protected by confidentiality, then his letter of complaint to the Judicial Conduct Commissioner should similarly be protected by confidentiality.

[76] This does not, however, follow. We are unsure how it was that the complaint came into the Chief High Court Judge’s possession. However, he referred it to the New Zealand Law Society and it was lawfully in the New Zealand Law Society’s possession. The Society is entitled to act in regards to it. There is nothing in the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 that cloaks the documents themselves with privilege. Rather, obligations are imposed on the Judicial Conduct Commissioner to keep matters confidential. In the present case the Judicial Conduct Commissioner did not object to use of the document in the proceedings, and did not seek any confidentiality orders. Accordingly there was no impediment to its use before the Disciplinary Tribunal.

[78] Mr Orlov contended that the various judgments of Harrison J were inadmissible before the Disciplinary Tribunal. This was in reality a claim that the judgments could not be used as proof of any fact in issue in the present proceedings. This is the effect of s 50(1) of the Evidence Act 2006 which provides:

(1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.

Mr Orlov understandably relied on Dorbu v Lawyers and Conveyancers Disciplinary

Tribunal which held that this section applied to proceedings before the Tribunal.³⁴

(1) Subject to section 236, the Disciplinary Tribunal may receive as evidence any statement, document, information, or matter that may, in its opinion, assist it to deal effectively with the matters before it, whether or not that statement, document, information, or matter would be admissible in a court of law.

(2) The Disciplinary Tribunal may take evidence on oath, and, for that purpose, any member of the Disciplinary Tribunal may administer an oath.

(3) The Disciplinary Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and verifying that statement by oath.

(4) Subject to subsections (1) to (3), the Evidence Act 2006 applies to the Disciplinary Tribunal in the same manner as if the Disciplinary Tribunal were a Court within the meaning of that Act.

(5) A hearing before the Disciplinary Tribunal is a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

³⁴Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV 2009-404-7381,

[80] We consider subs (1) governs s 50 of the Evidence Act 2006.³⁵The judgments may be accepted by the Disciplinary Tribunal as evidence. It then simply becomes a question of weight to be given to the conclusions contained therein. This assessment will inevitably be case specific and turn very much on the particular proposition for which the judgment is being relied on. We therefore reject this challenge to the extent it is an admissibility challenge. Whether the Disciplinary Tribunal has accorded the wrong weight to any conclusions contained in any judgments is a matter able to be addressed when the appeal is considered, although we do not find it necessary to do so in this case.

[81] Mr Orlov places significant weight on the importance accorded to freedom of expression. As important a topic as it is, we do not consider there is any real dispute about the applicable principles.

[82] Generally we accept that freedom of expression is a relevant consideration both as to whether the charge is proven, and on sentencing. In relation to proof, these charges are laid at the top end of the misconduct scale and carry obvious jeopardy to the charged practitioner’s capacity to earn a living. Given that, where the alleged misconduct consists only of speech, we have no difficulty with the idea that a significant level of robustness is required. That proposition can be worded many ways but in our view little is to be gained by articulating different formulations. The more useful task is to apply the proposition to the facts.

[83] As for how that is actually to be given effect to in this case, we note that the charges require the Tribunal to be satisfied that lawyers of good standing would find the conduct dishonourable and disgraceful. We consider that lawyers of good standing would recognise the importance of freedom of expression, and not be unduly concerned or condemnatory of extravagant language, and misguided

³⁵Section 5(1) of the Evidence Act 2006 says: If there is an inconsistency between the provisions of this Act, and any other enactment, the provisions of that other enactment prevail, unless this Act provides otherwise.

[84] Another example is that one of the conduct rules said to have been breached by Mr Orlov is the duty on practitioners not to undermine “the dignity of the judiciary”. We accept that the value to be accorded free speech means one cannot be unduly precious when faced with robust or extravagant comment. If it is said that language is having the effect of undermining the dignity of the judiciary, regard needs to be had to where it was said and what was said, all against a background of not lightly restricting the right to make comment, even if ill-informed and extravagant.

[85] That said, there is equally no doubt that the protection afforded by freedom of expression is not absolute. In Orlov v New Zealand Law Society, the Court of Appeal held:³⁶

[120] Mr Orlov submitted that lawyers have the same rights as members of the public to make complaints about judges and that it would be a serious infringement of basic human rights and international law for the making of a complaint to be the subject of disciplinary proceedings.

[121] This submission overlooks the point that it is not the making of the complaint which is the concern but the allegedly intemperate and persistent manner in which the complaints have been made.

[122] As noted by Heath J, while complaints may be made against judicial officers it is clear that disrespectful or scandalous allegations against a judge exercising judicial authority is an affront to the court and poses a risk to public confidence in the judicial system. Such excessive conduct does not qualify for protection under the right to freedom of expression. To hold otherwise would be to inhibit both the court's own disciplinary jurisdiction over lawyers appearing before it and its contempt jurisdiction. We agree.

[86] This position, by which we are of course bound, reflects that adopted overseas. A recent decision is Doré v Barreau du Québec.³⁷Mr Doré, a barrister unhappy with his treatment in court by a Judge, wrote subsequently to the Judge in terms that were in equal measure colourful and abusive. Disciplinary proceedings were instituted.

... the conduct of an advocate must bear the stamp of objectivity, moderation, and dignity.

[88] The Supreme Court of Canada considered that the importance of professional discipline to prevent incivility in the legal profession was beyond question. It described the misconduct in this case as consisting of:³⁸

... potent displays of disrespect for the participants in the justice system, beyond mere rudeness or discourtesy.

(As we observed earlier, the proposition can be worded in a myriad of ways without there being any significant difference in the meaning.)

[89] We cite two passages from the Supreme Court’s decision in Doré as representing, we consider, sufficient articulation of the task. After that it is simply a matter of assessing the particular case.

[65] Proper respect for these expressive rights may involve disciplinary bodies tolerating a degree of discordant criticism. As the Ontario Court of Appeal observed in a different context in R v Kopyto, the fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer’s expressive rights under the Charter. This does not by any means argue for an unlimited right on the part of lawyers to breach the legitimate public expectation that they will behave with civility.

[66] We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion. As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise.

[68] Lawyers potentially face criticism and pressures on a daily basis. They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility. On the other hand, lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint.

[69] A reprimand for a lawyer does not automatically flow from criticizing a judge or the judicial system. As discussed, such criticism, even when it is expressed robustly, can be constructive. However in the context of disciplinary hearings, such criticism will be measured against the public’s reasonable expectations of a lawyer’s professionalism. As the Disciplinary Council found, Mr. Doré’s letter was outside those expectations. His displeasure with Justice Boilard was justifiable, but the extent of the response was not.

[92] Before leaving this aspect of the discussion, we observe that before us Mr Orlov’s submissions on freedom of expression came by way of an appendix which consisted of submissions Mr Deliu had apparently prepared for his own defence in relation to similar charges. The submissions cite copiously from primarily North American authorities, but also decisions of the European Court of Human Rights. We consider it can be taken from these cases that there is no absolute right of freedom of expression, that it is legitimate for states to draw a balance between freedom of expression and the need to protect the authority of the judiciary and the processes of the Court, that a significant degree of robustness is required, and that any punishment should be proportionate bearing in mind the competing interests and the importance of freedom of expression. If this is the intended import of the submissions we agree. If more is claimed, we consider it is not consistent with domestic authority by which we are bound.

[93] Finally, in relation to freedom of expression, we record Mr Orlov’s submission that the Disciplinary Tribunal did not have regard to it. To the extent this suggests the topic was overlooked, it plainly was not. There was considerable discussion about it. To the extent that it is a submission that insufficient weight was given to the principle, that is something we will address when considering the appeals.

[94] We turn now to the appeals. This is a general appeal and in accordance with settled principle we are required to form our own view based on the evidence.³⁹We

_{recognise the specialist nature of the Disciplinary Tribunal,
particularly when it}

³⁹Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at

comes to assessing how a matter would be perceived by lawyers of good standing. A Court is also of course not devoid of some specialist knowledge in that area.

[95] The primary task is to consider whether each of the charges has been correctly held to be proved, particularly bearing in mind the freedom of expression principles discussed. Before doing that, however, there are two specific issues raised by Mr Orlov that need to be addressed.

[96] As noted, three charges were laid in the alternative, there being some uncertainty over which misconduct provision Mr Orlov’s conduct fell within. The issue turns on the wording used in s 7 of the Act to distinguish between professional and personal misconduct. Mr Orlov generally contended that his conduct was in his personal capacity so the charging would fall under s 7(1)(b)(ii) (personal misconduct). He then argues that the nature of his conduct is not of a type traditionally seen as engaging the concerns underlying this provision. Accordingly, there should be no charges as it is personal conduct but not sufficiently morally culpable to merit Law Society charges.

[97] Section 7(1)(a) covers professional misconduct (not the statutory term) and describes it as:

... conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services ...

[100] This conduct will be misconduct if it, by its nature, would support a conclusion that the practitioner is no longer a fit and proper person or is otherwise unsuited to engage in the practice of law.⁴²

[101] Regulated services are defined as the provision of legal work,⁴³a concept that is also defined in reasonably predictable terms.⁴⁴The structure of the charges in this case was to treat the documents filed by Mr Orlov as part of court proceedings as coming within professional misconduct, but to see the complaint letters as being

“unconnected” to the provision of legal services and therefore falling within s 7(1)(b)(ii). The Disciplinary Tribunal agreed with this analysis.

[102] We first accept the conclusion drawn by the Disciplinary Tribunal that the two paragraphs together must cover all conduct. There cannot be a gap.

[103] In terms of defining the scope of each alternative, the Disciplinary Tribunal was reluctant to draw firm lines, citing from a decision of the High Court of Australia:⁴⁵

The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person’s behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practice. ...

[104] Professional misconduct has always been the subject of disciplinary action. Concerning personal misconduct, s 35 of the LP Act 1955 provided that a practitioner could be struck off on the grounds:

(c) That in the opinion of the Disciplinary Committee he has otherwise been guilty of grave impropriety or infamous conduct and by reason thereof is not a fit and proper person to practise as a barrister and solicitor.

⁴⁵A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1, (2004) 204

Then in 1962 that provision was amended to refer to “conduct unbecoming a barrister and solicitor”.⁴⁶

(a) is of the opinion that the practitioner had been guilty of misconduct in his professional capacity; or

(b) is of the opinion that the practitioner has been guilty of conduct unbecoming a barrister or a solicitor.

[106] We consider the Act’s definitions continue to maintain the distinction between professional and personal misconduct. The latter involves moral obloquy. It is conduct unconnected to being a lawyer which nevertheless by its nature, despite being unrelated to the practitioner’s job, is so inconsistent with the standards required of membership of the profession that it requires a conclusion that the practitioner is no longer a fit and proper person to practice law.

[107] The test of “fit and proper” person remains the touchstone for whether a lawyer is to be struck off.⁴⁷It is the assessment that is to be undertaken following a finding of professional misconduct under s 7(1)(a)(i). In other words it is recognised that misconduct in the performance of professional duties may lead to a conclusion of unfitness, but not necessarily. By contrast, with personal misconduct, the fit and proper person inquiry is an element of the actual offence. This in effect recognises that personal conduct unrelated to work must be of a nature which in itself justifies a conclusion that the practitioner is not a fit and proper person. We think this structure

supports giving a broad scope to professional misconduct with a consequent limiting of personal misconduct to situations clearly outside the work environment.

[108] In a Disciplinary Tribunal decision determined under the previous Act, the

Disciplinary Tribunal quoted from the previous edition of the Laws of New Zealand

_{chapter on Law Practitioners.}⁴⁸_{We consider the
examples cited therein generally}

⁴⁸Waikato Bay of Plenty District Law Society v Baledrokadroka [2002] NZAR 197 (LPDT) at [12] citing Laws of New Zealand Law Practitioners at [202]. We do not agree with the inclusion in this list of “fraudulent conversion of small amounts of clients’ monies”. In our view that would be connected with the provision of regulated services.

illustrate the traditional scope of the personal misconduct option and the current scope of s 7(1)(b)(ii):

The following instances have been held to constitute conduct unbecoming a barrister or solicitor and as such jurisdiction existed for the Tribunal to enquire into the disciplinary charges: misconduct of a sexual nature with a babysitter; insulting behaviour where there have been previous convictions for indecent assault; association with the business of bookmaking; importuning for immoral purposes; corruption in public office; issue of valueless cheques; obscene and threatening language in a public place and fraudulent conversion of small amounts of clients’ monies; consorting with criminals; and allowing the house rented by a tenant to be used as a brothel.

[109] Against that background we have little doubt that all of Mr Orlov’s activity should be seen as being connected to the provision of legal services and should have been charged and assessed under s 7(1)(a)(i). One need only look at the purpose of the documents. The first, for example, was a request by a practitioner to the Chief High Court Judge to direct that a Judge of the High Court not be allocated to cases involving that particular practitioner. The second was a misguided originating application filed in the High Court and seeking the same thing. The third is an application for leave to appeal filed on behalf of clients in the Supreme Court and the fourth is a complaint to the Judicial Conduct Commissioner, complaining about how a Judge is treating a practitioner in the course of the practitioner appearing in court on behalf of clients.

[110] The final document, the complaint to the Human Rights Review Tribunal, we accept is the least clear. By its nature it is a personal claim, being an allegation of discrimination against the practitioner, and a breach of rights that can only be personal to the lawyer (as opposed to involving a claim for a client). But again, given that the person alleged to have discriminated is a Judge, the person complaining is a practitioner, and the context is litigation in which both were involved, we do not consider it is a claim “unconnected to the provision” of legal services. Rather, it directly stems from litigation and puts what happened in litigation squarely in issue.

[111] The contrary view of the Committee and the Disciplinary Tribunal results from a focus on the definitions of regulated services, legal services, legal work and reserved areas of work in s 6 of the Act. To explain, regulated services are, in this

context, legal services. Legal services means the carrying out of legal work. Legal work includes “the reserved areas of work” and the reserved areas of work involve the giving of advice and appearing as an advocate. We accept that in making his complaints Mr Orlov was not directly doing this so was not providing regulated services.

[112] However, it is necessary to return to the proposition that the two definitions in ss 7(1)(a)(i) and 7(1)(b)(i) cover the entire field. Mr Orlov’s conduct will come under s 7(1)(b)(i) only if it is not the provision of regulated services (which it is not) and if it is unconnected with the provision of legal services. It is this aspect of the definitions that we consider is crucial. Whilst not regulated services, the conduct is very much connected with the provision of such services and therefore comes within the s 7(1)(a)(i) limb of professional misconduct.

[113] Our conclusions differ both from how the charges were laid and from how the Disciplinary Tribunal assessed them. It is necessary therefore to consider what options are available to us. On appeal the High Court may “confirm, reverse, or modify” the order or decision of the Tribunal.⁴⁹The same wording appeared in the Law Practitioners Act 1982. In Wellington District Law Society v Cummins, it was held that the term “modify” was broad enough to allow the Court to vary the charges.⁵⁰We see no reason to differ, particularly since the drafter of the current Act has used the same language in the present legislation, and is to be taken as being aware of that interpretation. Accordingly, we propose to amend the charges to reflect our interpretation of the Act.

[114] We are satisfied no prejudice to Mr Orlov is thereby created. First, the particulars for each charge remain unchanged. Second, the change to bring all charges under s 7(1)(a)(i) has the advantage for his sentence appeal that “fit and proper person” is no longer a proven element of the offence. This was a feature Mr Orlov had complained of in relation to the existing charges. Although it means

_{that on some charges we will now not have the benefit of the
Disciplinary Tribunal’s}

assessment of the s 7(1)(a)(i) test, we do know its conclusions on the conduct when measured against the s 7(1)(b)(ii) standard.

(a) concerning charges 1 and 2, the correct charge was the alternative, charge 2;

(b) concerning charges 3 and 4, the correct charge was charge 3, which is the charge the Disciplinary Tribunal assessed;

(e) concerning charges 7 and 8, the alternative charge, charge 8, was the correct charge.

[116] In relation to the two documents filed in Court (charges 3 and 5), Mr Orlov claims he cannot be charged because they were not his documents.

[117] Looking first at the originating application for recusal filed in the High Court, the document names Mr Orlov and Mr Deliu as first and second applicant respectively. The document is said to be filed by Mr Deliu. Mr Orlov did, however, file an affidavit in support.

[118] Mr Orlov submits he cannot be responsible for a filing by a lawyer on his behalf. We do not accept the point. He is the first named applicant and has signed an affidavit in support. He does not claim to be unaware of the contents and cannot avoid responsibility in this manner.

[119] The second document is the leave application filed in the Supreme Court. At the end of the document it is recorded that it:

... is filed by Frank Deliu and Evgeny Orlov on behalf of the above-named appellants.

[120] Again, in our view, there is no credible argument that Mr Orlov cannot be held to account for its contents. It is an appeal ostensibly filed on behalf of the clients but appealing the costs orders made against Messrs Orlov and Deliu, an allegation being that the Judge acted with an ulterior motive to harm Messrs Orlov and Deliu personally.

[121] We are satisfied both documents are properly the subject of charges. It matters not that someone else may have played a role. The issue is whether Mr Orlov’s connection to it is sufficient to support him being held responsible for it.

[122] We turn now to a consideration of each of the five charges, and begin with some general comments about some of the particulars that are the subject of charges.

[123] Taking examples from the first charge, we do not generally consider that making allegations against a judge of bias, making an improper complaint to the Law Society, and making improper, inflammatory and intemperate criticisms, even if such allegations are made without a sufficient foundation, can constitute misconduct at the level alleged.⁵¹

[124] It must be recalled there is no allegation of bad faith. That was not the case when the charges were first filed. At that initial stage it was claimed that the circumstances in which the allegations were made meant they were scandalous, and that Mr Orlov knew at the time they were false, or at least realised they could well be false. However, those aggravating features were removed by the amendment to the

[125] When one looks at what is left, we consider something more than the extravagant phrasing of complaints is required to found charges at this level. Further, it is questionable that some of the charged statements merit charges at any level. Allegations of bias are not uncommon, and are a legitimate ground of appeal or review. If a claim of bias, without accompanying claims of known falsity and bad faith is to be the subject of charges, we agree with Mr Orlov that much greater particularity is required to show in what way it is alleged to be misconduct. Likewise with an allegation that a decision or conduct was “improper”. This is a term used often when challenges are made to decisions. It can have many different meanings and contexts. Something more is required to make it worthy of charges, and whatever that extra feature is should be clearly set out.

[126] Another of the particulars in charge 2 cites claims by Mr Orlov that the Judge’s comments were intemperate and inflammatory. These again are labels that in isolation are not particularly of concern. They are descriptive of conduct and do not import improper motives. We do not consider that, without more, charges were appropriate for those comments. We do not intend to discuss in detail this aspect of all the charges, but we express similar doubts about the charged statements that involve claims that Harrison J treated Mr Orlov disproportionately, a general claim that the Judge was discriminating against him, that the Judge was breaching Mr Orlov’s human rights, that the Judge improperly and unlawfully threatened him with contempt, that the Judge’s language, tone and demeanour were abusive and insulting, and that the Judge had over a period acted in a way that was discriminatory, unfair and improper, such as to bring the administration of justice into disrepute.

[127] We do not say that these things could never be the subject of proceedings at some level and we recognise context is important. Here however the complaints were mostly made within the structures of available complaints procedures and were made to the appropriate person. It is important to balance the right to complain with the need for lawyers to act appropriately, but as discussed a significant degree of robustness is needed. We stress again as we did at the outset that the Committee dropped its allegations that Mr Orlov was acting in bad faith or knew these things to be untrue. That was, we consider, a significant concession and colours the validity of laying disciplinary charges in relation to this type of statement.

[128] Mr Hollyman provided assistance on whether an allegation of conscious fault is required for this level of charge. In Complaints Committee No.1 of the Auckland District Law Society v C, this Court held that intentional wrongdoing was not a necessary ingredient of a professional misconduct charge.⁵³It observed:⁵⁴

The authorities referred to above (and referred to in the Tribunal decision) demonstrate that a range of conduct may amount to professional misconduct, from actual dishonesty through to serious negligence of a type that evidences an indifference to and an abuse of the privileges which accompany registration as a legal practitioner.

[129] In the present context there is no issue that Mr Orlov deliberately made these comments in full awareness of what he was saying. If the charges have indeed been proven, as the Disciplinary Tribunal holds, then he will have done so without a sufficient foundation. We are satisfied that, in relation to the more serious unfounded allegations that have been made, such conduct would constitute sufficient fault for a finding of misconduct.

[130] We now address the individual charges. For each charge, in light of our preceding comments, we will focus on the statements that we consider, by their

⁵³_{Complaints Committee No.1 of the Auckland District Law
Society v C [2008] NZHC 2284; [2008] 3 NZLR 105 (HC).}

(a) Harrison J subjected Mr Orlov and Mr Deliu and unspecified colleagues to improper persecution and discrimination;

(b) Harrison J was attempting to punish Mr Orlov and his colleagues for their beliefs or ethnicity or both; and

(c) Harrison J intentionally and maliciously caused Mr Orlov unspecified harm, and had conducted himself as a judicial officer in an atmosphere of horrific denigration and insult, with uncontrolled and unpredictable rage against Mr Orlov.

[132] These allegations are a mixture of motive attribution, and allegations of extreme conduct (horrific denigration and insult; uncontrolled and unpredictable rage). The available sources of justification (for example, sufficient foundation) are the letter itself, the “submission” accompanying the letter, and the affidavit filed by Mr Orlov in the Disciplinary Tribunal. We have read these carefully and can find in them no foundation at all for these allegations.

[133] Indeed, other than making this allegation, there is no attempt by Mr Orlov to explain the foundation for his allegations. Looking first at the motives attributed to Harrison J, whilst the reasons why Mr Orlov alleges bias can be clearly seen, there is no attempt by him to explain the basis on which he says the alleged bias is sourced in a dislike by the Judge of Mr Orlov’s ethnicity and beliefs, amounts to improper persecution, and led to a desire to improperly and maliciously cause Mr Orlov harm.

[134] As for the conduct descriptions, the objective material does not support the extreme language of “horrific denigration and insult”, nor of “uncontrolled and unpredictable rage”. In terms of the availability of a formal record of any of these proceedings, one was recorded and a transcript created. The transcript does not

support Mr Orlov’s allegations.⁵⁵In relation to two of the other cases, there are affidavits for one from a Queen’s Counsel, and for the other from an experienced barrister. Again this evidence provides no support for the type of claim being made by Mr Orlov. Nor did Mr Orlov provide contrary evidence from any other practitioners or court staff who were present on these occasions.

[135] There is a further aspect to this evidence from other lawyers on which we wish to comment. In his affidavit Mr Orlov refers to the letter Harrison J wrote to the Auckland District Law Society. In that letter, the Judge, as an example of Mr Orlov’s lack of familiarity with protocol, referred to him calling Judge Mahoney “Mahoney” without any honorific. Mr Orlov denies this, saying he may have mispronounced the name but he never just called him “Mahoney”. Mr Orlov goes further and says that not only is Harrison J wrong, he was lying about it.

7. I certainly recall Justice Harrison remonstrating with Mr Orlov for a lack of respect in failing to attach the appellation of “Judge” to Judge Mahoney’s name. As I recall Mr Orlov on a number of occasions referred to the Judge as “Mahoney”, without any appellation at all. I understand Mr Orlov may have alleged Justice Harrison criticised his pronunciation of Judge Mahoney’s name. I have no recollection of that.

[137] Ms Irving’s evidence is unchallenged, and coincides with the Judge’s description of events. We accept it. We highlight this aspect because it illustrates one of the traits that has led Mr Orlov to the situation in which he finds himself. There is no restraint in his writing. He does not seem to recognise that his memory of events, often forged in stressful times, may be wrong. Further, he seems determined to put the worst connotation on others’ perceived errors, usually without any basis and equally without any need to do so.

[138] The statements of concern that we have identified under this charge reflect this trait. Mr Orlov obviously believes Harrison J has it in for him. To a certain

_{extent, but not in an improper way, Harrison J did. But only in that he
clearly had}

concerns over Mr Orlov’s competence and the way he conducts himself on behalf of clients. His Honour acted on those concerns, as he was entitled to, by referring judgments to the Law Society and by writing directly to the Society. Mr Orlov responded, as he was entitled to do. The Judge’s actions were significant events for a lawyer. They put in question his standing in the profession, and potentially put at risk his capacity to follow his chosen career path.

[139] A measure of spleen in responding to the Judge’s actions, though not to be condoned, could be understood, and rather easily handled. But again Mr Orlov seems driven to go further, and to make these unsubstantiated and unnecessary claims that the Judge is acting out of a desire to punish Mr Orlov, or because Mr Orlov was born overseas, or because the Judge does not like his political opinions.

[140] Mr Orlov has rightly been held to account for these statements. Disappointingly, when confronted with the opportunity to justify them, Mr Orlov has taken procedural points at every step, filed an affidavit in which he does not attempt to support his claims and then refused to expose himself to cross-examination. One can only draw the inference that, as the objective material suggests, there is no sufficient foundation.

[141] We consider there can be no doubt that lawyers of good standing would regard the making of these statements without any foundation for doing so, as both disgraceful and dishonourable. The claims of persecution, and the attribution without any basis of highly improper motives, are statements within the area identified by the Court of Appeal as being outside the protection of freedom of expression. We agree that this charge was proven.

... the Registry at the High Court permanently not allocate any cases, files, litigation filed by the applicants, or with them on the record and/or any solicitor firm they are employed by, to the Honourable Justice Rhys Harrison.

(a) Harrison J had filed untenable and insufficiently particularised complaints with a Law Society, which were frivolous, malicious, vexatious, vindictive, oppressive and/or punitive in nature;

(b) that Harrison J had violated arbitrarily or capriciously the human rights of the applicants (Mr Deliu and Mr Orlov) and “the severity of the breaches is likely to increase”; and

[144] This latter statement, standing alone, would not we consider support this level of charge. It depends, however, on what lies beneath it, and here we cite from the affidavit filed by Mr Orlov in support:

22. In his demeanour, attitude, speech and manner towards me Harrison J showed what I felt to be anger and contempt towards me which I feel had clouded his bias towards me as a new counsel coming from an overseas jurisdiction and having a foreign sounding name. He was rude towards me whereas he was deferential to other counsel and he would not listen to me at all. I felt threatened and intimidated and indeed it is my strong belief that Harrison J because of his dislike and discrimination towards me made decisions against my Russian client. He simply would not listen to me and refused to let me speak.

[145] This passage is another example of Mr Orlov mixing matters about which he is entitled to complain with commentary that is both without foundation and unbecoming a member of the profession. The penultimate sentence is an accusation that the Judge found against Mr Orlov’s Russian client because of the Judge’s dislike

and discrimination against Mr Orlov.⁵⁶One struggles to think of a more serious

allegation than that dislike of counsel (and inferentially discrimination because of nationality) led a Judge to decide a case differently from how he otherwise would

⁵⁶We have refrained from engaging with the underlying cases but feel obliged to observe that the Judge’s decision to grant the Chief Executive’s application for a writ of habeas corpus was an available orthodox response to a situation where a parent, in clear breach of Family Court orders, was refusing to return a child following an access visit.

[146] For the same reasons given earlier, we agree with the Disciplinary Tribunal that these statements were made without foundation. Even if Mr Orlov was right about the case (which he is not), and even if Harrison J’s orders were incorrect (which they were not), the context provides no foundation at all for the statements and allegations made by Mr Orlov. Again, he has provided none, and not agreed to be tested under oath about it. The statements clearly fall outside the protection of freedom of expression, are disgraceful allegations for a practitioner to make without foundation, and the charges were rightly considered to be proved.

[147] This relates to the leave application filed in the Supreme Court. The statements on which we focus are claims:

(a) of discrimination by Harrison J based on foreign nationality, reputed political beliefs, and status as human rights advocates;

(b) that Harrison J acted without jurisdiction ultra vires, mala fides, maliciously, vexatiously, vindictively, spitefully, oppressively, unduly punitively and/or with an ulterior motive to harm Mr Orlov personally; and

[148] We comment further on the first of these statements. As far as we can ascertain the claim of discrimination based on foreign nationality is a claim that Harrison J is prejudiced against non-New Zealand lawyers. It seems to be an allegation more often made by Mr Deliu, but one adopted by Mr Orlov. For example, Mr Deliu filed an affidavit in the Disciplinary Tribunal in support of Mr Orlov, and he makes these claims in that evidence. There seem to be three matters relied on as supporting the allegation:

(a) It is said, but we have not seen, that Mr Deliu has looked at the cases in which Harrison J has referred, when sentencing an accused, to the foreign nationality of the accused before him. This is meaningless

unless a proper analysis is provided as to why the “singling” out of an accused’s nationality occurred. There are countless reasons why it can be a necessary and legitimate comment.

(b) It is said that many, but not all, of the situations where Harrison J has referred judgments to the Law Society involve foreign lawyers. Again the source information is not provided to us. As an observation it provides no foundation at all for the statements made.

(c) It is claimed by Mr Orlov that Harrison J asked him, in front of his client, where he got his qualifications from. Again this does not provide any basis for the claim. It is a question that might be asked of anyone whose qualifications are in issue. We do not know what occurred on the particular occasion, but agree generally it is unwise of a Judge to make that inquiry in open court, especially if clients are present. But even if that happened, we do not consider it can support any link to these allegations.

[149] In relation to the claim of discrimination based on political beliefs, this appears to be sourced in an exchange that happened in the second of the four cases. The case involved a custody dispute. The High Court matter was judicial review proceedings challenging the actions of the Chief Executive of Child, Youth and Family and the Family Court. Mr Orlov filed the proceedings, Mr Deliu filed the written submissions, and an Auckland barrister, Mr Charl Hirshfeld, appeared in court. In the course of holding the proceedings to be an abuse of process, Harrison J observed that the proceedings appeared to be part of a wider agenda, not necessarily attributable to the actual parties.

[150] The background to the case was that the Māori parents were at risk of losing custody of their children because of their conduct towards each other in front of the children. There was a history of drinking and violence which various specialists said was directly manifesting itself in the children’s conduct. After various interventions, agreement was reached for interim custody arrangements other than with the parents.

Although the parents had seemingly agreed with this, as was their right they had second thoughts and instructed Messrs Orlov and Deliu to assist.

[151] In relation to the agenda comment, Harrison J cited a passage from Mr Deliu’s submissions where Mr Deliu observes that his clients belong to an indigenous socio-economically disadvantaged subclass who have been historically abused by the New Zealand nation and the New Zealand authorities need to be particularly sensitive about the relocation of their children.

[152] Mr Deliu continued on to offer further commentary on the plight of indigenous parents. In the context of the proceedings, the commentary seems gratuitous, but Mr Deliu no doubt saw it as helpful background context. Neutral observers would, we suspect, read it as being somewhat condescending but these things are in the eye of the beholder.

[54] This submission speaks for itself in its fundamental misunderstanding of New Zealand society, its norms, its values and its legal system. Even a passing familiarity with the Act and the steps taken by the social workers involved in this case would confirm the statutory concern with promoting Māori needs, values and beliefs where they arise: see, for example, ss 4, 5, 9, 13 (particularly s 13(f), 21 and 22). All citizens are equal before our law and the indigenous ethnicity of parents has never justified giving the interests of Māori children less protection than other racial groups. The rights of children, and the state’s responsibility towards them, are universal.

[154] His Honour then referred to an unrelated Family Court case in which Mr Deliu had suggested counsel for the child should, in that case in relation to the Māori children, be Māori. Judge Hikaka had forthrightly rejected that, and Harrison J cited an extract from his Honour’s ruling. The ultimate outcome was that the judicial review proceedings were struck out.

Messrs Orlov (who filed the proceedings) and Deliu (who filed the submissions). It is important for fairness’ sake to observe that on appeal the substantive decision of

⁵⁷RL v Chief Executive of the Ministry of Social Development HC Auckland CIV-2007-404-7031,

Harrison J was reversed in part.⁵⁸Whilst the Court agreed with Harrison J that the pleadings were “a jungle of conceptual confusion”, it considered that one aspect of the review proceedings should have been allowed to continue. The balance of the strike out was upheld. It followed, and was confirmed in a subsequent decision, that the personal costs award must be overturned given the outcome on the substantive appeal.

[156] As far as we are aware, it is solely the exchange over the correctness of Mr Deliu’s submissions about the plight of Māori people that underlies the proposition that Mr Orlov is being persecuted for his political opinions. No such inference is available based on that. It is the expression of a difference of opinion on the merits of Mr Deliu’s submission, but nothing more. Further, the comments relate solely to Mr Deliu’s submissions. It is unclear why Mr Orlov links himself to it. His culpability, as Harrison J found it, was not in the submissions, but in the filing of the confused judicial review pleadings. Finally, we again note that in his affidavit Mr Orlov has not sought to explain the basis for his comments, nor suggest why the links he draws are tenable.

[157] Looking at the statements overall, we consider that allegations of ethnic discrimination, of discrimination based on foreign nationality, of acting out of spite and a desire to harm counsel personally, all made without any suggested foundation, would rightly be regarded by lawyers of good standing as dishonourable and disgraceful, and as falling outside the protection of freedom of expression.

[158] The gratuitous claim of Harrison J being “a danger to the public” is more questionable. It is a disgraceful comment, and one suggestive of a lack of judgment and self discipline in litigation that is troubling in one who enjoys the privileges being a barrister brings. It is, however, arguable that it is the type of extravagant claim that freedom of expression protects, at least in part. It does not involve attribution of motive, and we consider it could be the subject of censure but not this level of charge.

⁵⁸L v Chief Executive of the Ministry of Social Development [2009] NZCA 596.

[160] This charge relates to the complaint to the Human Rights Review Tribunal. We have already amended it to being a charge under s 7(1)(a)(i). The statements made in the complaint upon which we particularly focus are:

(a) that on the habeas corpus case Harrison J acted as he did because he perceived that Mr Orlov’s client was Russian, and that Mr Orlov was a Russian lawyer;

(b) that Harrison J intended his judgment to have the effect of destroying the reputation of the plaintiff with the full knowledge that as a Judge he could not be liable in law for defamatory statements made in relation to the plaintiff;

(c) that the language used in Harrison J’s judgment was of such an “extravagant, vicious and defamatory nature” as to be unprecedented in a judgment and demonstrates even from the language alone an attitude of discrimination towards Mr Orlov and/or his client; and

(d) that Harrison J had “maliciously denigrated” Mr Orlov in front of his judicial colleagues creating an atmosphere whereby it was difficult for the plaintiff to appear.

[161] The difficulty with most of these statements is self-evident given the preceding discussion. The excessive nature of the statements show that by the time of writing this complaint, Mr Orlov had lost any sense of judgment or perspective.

[162] The comments in (c) about the tone of a judgment are simply wrong. It is difficult to be sure which of two judgments Mr Orlov was referring to, but neither remotely merits the labels Mr Orlov attaches.

[163] The comment suggesting Harrison J has denigrated Mr Orlov to fellow judges stems, it seems, from an exchange with Cooper J where His Honour noted (it is said) that he took it seriously that Mr Orlov was accusing Harrison J of being a

racist. Mr Orlov reasons that it is not true that he was claiming Harrison J to be racist against Māori, the idea that he was so claiming could only have been sourced in Harrison J and therefore Harrison J was denigrating him to other judges. Mr Orlov also submits that the only correspondence at that point was to Harrison J personally.

[164] The exchange with Cooper J is not dated so we cannot comment on whether the timing supports this reasoning process of Mr Orlov. However, the underlying premise that Mr Orlov was not alleging Harrison J was racist against Māori is in our view incorrect. Ground 4 of the Supreme Court leave application reads:

the High Court Judge erred in law by denying a fair and impartial decision maker as it did not hold against the argument that it was racist against Māori.

[165] It is not easy to follow but we read this as being an appeal on the grounds that the High Court (Harrison J) wrongly rejected a submission that he stand down because he was racist against Māori.

[166] We do not comment further on these statements, many of which are repetitive of earlier statements. The same lack of justification is present, and the charge was rightly considered to be proved.

(a) that Harrison J had maliciously made complaints, and had done so with reckless indifference to the truth;

(b) that Harrison J took steps which maliciously and in bad faith were attempts to cause Mr Orlov harm;

(d) that Harrison J was a danger to the legal profession and the public and that it was not in the public interest that he be allowed to continue his discriminatory and unlawful behaviour.

[168] Again, little comment or analysis is required. By this time Mr Orlov seems, quite frankly, to have been out of control in terms of his capacity to make an acceptable complaint. There is a hysterical tone to the statements which points to an increasing frustration and sense of grievance (legitimate or otherwise) that has got the better of Mr Orlov. For reasons given earlier, no justification or sufficient basis exists, or is identified by Mr Orlov. The alleged conduct of Harrison J on which he relies cannot support the link Mr Orlov then draws to the motivations he contends for. We consider allegations that a Judge was using his judicial office to hurt and slander a practitioner to be at the upper end of seriousness when made without any shred of foundation.

[169] Both this complaint, and that made to the Human Rights Review Tribunal were dismissed by the respective decision makers. The Judicial Conduct Commissioner declined jurisdiction in relation to most complaints. However, the Judicial Conduct Commissioner did consider aspects of the complaint in relation to the one proceeding for which there is a transcript of the hearing.

[170] Of this hearing Mr Orlov had complained to the Judicial Conduct Commissioner that Harrison J was aggressive and hostile. He described it as a one hour inquisition into his competence, and that it demonstrated Harrison J was discriminating against him and acting maliciously. In response the Judicial Conduct Commissioner observed:

10. I have reviewed the transcript of this particular proceeding, not for the purpose of forming an opinion on any findings or decisions (for that lies beyond my jurisdiction), but rather to assess whether your complaint as to his conduct has any validity.

11. It is clear that Justice Harrison was critical of several aspects of your submissions in the particular case. I appreciate that you personally regarded Justice Harrison to be treating you, unfairly and in a hostile manner. However, I am not satisfied that His Honour’s comments satisfy the test set out in paragraph 7 above. In my opinion, and considering the words used objectively, there is no evidence that Justice Harrison was discriminating against you or treating you in a

hostile manner. Further, His Honour is entitled to ask questions of counsel if he thinks it appropriate.

12. I appreciate that you also take issue with Justice Harrison’s particular tone or manner. However, I do not regard this to be a sufficiently serious issue to warrant my intervention.

[171] We refer to this as further support for our assessment that Mr Orlov was unable to be objective in his assessments. He very much felt he was targeted and so perceived things through that lens.

[172] We finally refer to the decision of the Human Rights Review Tribunal dismissing that complaint. Mr Orlov explains his lack of success as being because the Human Rights Review Tribunal considered it lacked jurisdiction. That is so for most of the complaint, but again there were two aspects where the Human Rights Review Tribunal considered it might have jurisdiction. Concerning these two aspects the Human Rights Review Tribunal struck the claims out, ruling that they did not disclose:

[173] Earlier, when determining that it lacked jurisdiction on the other complaints, the Human Rights Review Tribunal had observed:

... we do not discuss an obvious underlying question as to whether the judicial conduct complained of was by reason of any prohibited ground of discrimination, or was simply a response by the Judge to his concerns about the plaintiff’s competence.

[174] This captures the essence of it. Our conclusion is that neither the available material, nor any process of analysis and reasoning proffered by Mr Orlov, allows one to go beyond the obvious in order to reach the position of improper motives that Mr Orlov reaches.

[175] We are again satisfied that, giving due weight to freedom of expression and Mr Orlov’s apparent belief in the correctness of his views, the statements go well beyond what is acceptable from a lawyer, and amount to misconduct as charged. Disgraceful is an accurate label. We agree this charge is proved.

[176] There are many matters raised by Mr Orlov in the two proceedings. We have not covered all of them but are satisfied that we have addressed the key complaints, and that this judgment provides a substantive response to the essence of Mr Orlov’s challenges. We do, however, need finally to refer to complaints made about the Disciplinary Tribunal itself.

[177] Mr Orlov complains about the appointment of a Disciplinary Tribunal member, Mr Maling. In an affidavit filed in support of the judicial review proceedings, Mr Orlov queries why Mr Maling, described as “a senior apparatchik” of the Law Society, was added belatedly to the panel. He suggests the panel was being handpicked.

[178] There is otherwise no evidence on this matter. If the claim is an appearance of bias because Mr Maling has apparently held positions on the Canterbury District Law Society, we do not accept that is sufficient. It is inevitable and appropriate that senior practitioners will be used in the disciplinary process. Many will no doubt have held various offices during their time as practitioners.

[179] Mr Orlov also make a general complaint of bias. This seems to be sourced in a combination of the decisions the Disciplinary Tribunal made, and comments that were addressed to him during the hearing. Mr Orlov provided us with a list of transcript references in support.

[180] We address this briefly. It is inevitable that a five day hearing involving Mr Orlov representing himself will have moments of tension, frustration, and exasperation. We make no apology for describing Mr Orlov’s courtroom style, when acting for himself, as overly aggressive, and falling short of minimum standards of decorum and civility expected of practitioners. He has a natural predisposition to arguing, and a style which involves the constant posing of questions to the bench.

[181] In its sentencing decision the Disciplinary Tribunal noted that Mr Orlov was, during the hearing “vexatious, insolvent and provocative”. He at times compared the Disciplinary Tribunal variously with the Spanish Inquisition, a Stalinist show trial,

and accused it of creating an atmosphere that existed in Nazi Germany. Before us, Mr Orlov, having comment on aspects of the Disciplinary Tribunal hearing, asked the Court if it could see the kangaroos jumping around.

[182] We refer to these matters only because Mr Orlov has advanced these claims of bias. The passages in the transcript to which he refers do not, we consider, disclose bias but do show that members of the Disciplinary Tribunal at times were frustrated and probably annoyed by Mr Orlov’s conduct. Our conclusion is very much the same as that reached by the Judicial Conduct Commissioner on the matter in which there was a transcript of the hearing before Harrison J. Exchanges happened, and whether they should have or not, put into the perspective of a five day hearing they do not merit consideration on appeal nor disclose bias.

[183] For the reasons given we consider that the Disciplinary Tribunal was right to find the case against Mr Orlov made out in relation to each of the five documents. In moving on we consider the penalty appeal. We summarise the key conclusions:

(a) Some of the particulars alleged were not of sufficient seriousness to support the charge. Bearing in mind the potential consequences and the need for robustness, we do not generally consider allegations against a judge of bias, impropriety, or error merit this type of charge.

(b) From each document we have identified particulars that either allege improper motive, or are so extreme in their language so as to support the charges unless there was a sufficient basis for the allegation.

(d) The prosecution withdrew its allegation that Mr Orlov knew the statements were false, or at least knew they could be. Our sense of the material is that Mr Orlov so lost perspective that he was incapable

of controlling the manner of his complaints, or recognising the almost absurd reasoning that underlay the links he was drawing.

[184] Mr Orlov was struck off the roll of barristers and solicitors. He appeals against the severity of the punishment. He also raises two procedural points which we address first.

[185] The decision to find Mr Orlov guilty of the charges was not unanimous. The lay member of the panel considered the charges had not been proved. When it came to sentencing, the same panel was convened. A decision to strike a practitioner off the roll must be unanimous,⁵⁹which it was, but Mr Orlov queries how the lay member could agree with the sanction having differed on the charges. There is nothing in the point. The lay member properly approached penalty on the basis of the situation found to exist by the majority. That is appropriate.

[186] The second process issue is that Mr Orlov sought to have Mr Deliu represent him. This was declined and he sought an adjournment to instruct other counsel. This was declined. We consider it was open to the Disciplinary Tribunal to proceed. Mr Orlov must have known that Mr Deliu was unacceptable. He had been barred from acting on the substantive hearing and there was no reasonable basis to consider anything different would apply at sentencing.

[187] Turning now to the Disciplinary Tribunal’s reasons for striking Mr Orlov off, the Disciplinary Tribunal assessed the misconduct as being very serious in its nature. The Disciplinary Tribunal next looked at Mr Orlov’s conduct since the charges were laid. It is an understatement to say the Disciplinary Tribunal was plainly dismayed at how Mr Orlov had acted. Finally, the Disciplinary Tribunal had regard to the

_{decisions in like cases. Overall it assessed Mr Orlov as being guilty
of serious}

misconduct, and considered there was no realistic expectation he would change, or try to.

[188] In relation to Mr Orlov’s conduct subsequent to the charges being laid, the Disciplinary Tribunal focused on how Mr Orlov had engaged with the process. It noted his reluctance to modify his approach despite being told several times by this Court and by the Court of Appeal that it was inappropriate. The Disciplinary Tribunal recorded that Mr Orlov had continued to repeat the charged remarks in his evidence, and orally. As earlier noted, the Disciplinary Tribunal also considered that Mr Orlov was persistently rude and insulting to the Disciplinary Tribunal.

[189] We agree that Mr Orlov’s subsequent conduct, when combined with the five misconduct charges, made striking off a real consideration. Like the Disciplinary Tribunal, we note:

(a) he expanded the number of people and institutions to which he has shown a level of discourtesy inappropriate for anyone, let alone a member of the profession;

(c) he issued a press release prior to the Disciplinary Tribunal hearing which repeated unacceptable comments, and described the forthcoming Disciplinary Tribunal hearing as a “show trial”; and

(d) his conduct generally indicated that there is every possibility of repetition, and little sign that he would accept counsel, or modify his approach.

[190] It is well settled that a lawyer’s conduct in relation to the disciplinary process

is relevant to the question of sanction, and can aggravate the original offending.⁶⁰

Here, not only did Mr Orlov act in the ways outlined, he took every step possible to delay or avoid a proper inquiry, and then refused to be cross-examined having filed evidence. This conduct was rightly assessed as impacting on his fitness to be a lawyer.

[191] On an appeal of this nature it is appropriate for this Court to reach its own view, albeit giving due regard to the specialist Tribunal’s assessment.⁶¹Having done that, and notwithstanding his subsequent conduct, we consider that the sanction of striking off Mr Orlov for a first offence of professional misconduct which did not involve dishonesty or incompetence was disproportionate.

[192] Mr Orlov’s offending involves only speech directed against a member of the judiciary. We do not downplay the need to protect the dignity of the judiciary and generally the integrity of the administration of justice. Public confidence should not be improperly eroded by unfounded and ill-informed attacks from within. Practitioners who conduct themselves that way can rightly expect to be held to account. But where we differ is the level of sanction.

[193] First, we recognise that calling Mr Orlov a first offender is generous. There are five charges, and he has persisted with making these comments even after charges are laid. When charges were laid, rather than immediately resorting, as he did, to a claim of being persecuted by his professional colleagues, Mr Orlov should have recognised that his conduct was causing concern and engaged with the process to explain himself. It is a puzzle why he so strongly asserts he is right yet so vigorously pursued every way of avoiding the opportunity to show there was a basis

⁶⁰Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013]

⁶¹Waikato/Bay of Plenty District Law Society v Harris [2006] NZCA 532; [2006] 3 NZLR 755 (CA) at [111]–[113]; Parlane v New Zealand Law Society HC Auckland CIV 2010-419-001209, 20 December 2010 per Cooper J.

[194] However, these are his first convictions for this type of offence and now he can be under no illusions that there are rules with which he must comply if he wishes to remain part of the profession. Mr Orlov claims a strong desire to assist those whose rights he feels are being trampled. He must understand that cannot be done from the sidelines. Even if he is unable to appreciate or agree with the very sound well established principles that underlie these rules, he must accept the need to comply with them if he wishes to remain a practitioner.

[195] Second, we place weight on the circumstances in which the statements were made. Mr Orlov sought to use the proper channels – the Chief High Court Judge, the Judicial Conduct Commissioner and the Human Rights Review Tribunal. These were not public bodies, and were the appropriate recipients of the type of complaint. The filing of Court proceedings was less circumspect, but still relatively easy to manage. Publicity would generally only occur if the litigation had passed the initial hurdles, and if it did, publicity would at that point be appropriate. In that sense he still avoided going public with these claims.

[196] The press release is in a different category and has caused us grave misgivings. It was insulting to the Disciplinary Tribunal ahead of its hearing. It was unwise and highly inappropriate. We note, however, that before us Mr Orlov accepted it was an unwise thing to do, which is a step forward.

[197] Third, we note that the risks involved in giving Mr Orlov another chance are not as concerning as with other types of misconduct. This misconduct does not involve dishonesty, nor incompetence in acting for a client. It may expose another decision-maker to the type of unprincipled and disgraceful abuse that has been directed at Harrison J, but whilst regrettable, that would be of lesser concern than if members of the public were involved.

[198] Fourth, the charges of which Mr Orlov has been convicted do not involve allegations of bad faith. The Committee dropped that aspect of its case, and we consider regard must be had to that when determining the appropriate penalty.

[199] Fifth, our review of the authorities, both domestic and international, suggests this is too severe a sanction for this type of professional misconduct. We discussed earlier the Canadian case of Doré where that practitioner’s abuse of the Judge was severe, albeit for a less sustained period than here.⁶²Mr Doré was suspended for 21 days, an outcome upheld by the Supreme Court. In another Canadian case, Histed v Law Society of Manitoba, the practitioner had called the Judge a bigot, and suggested his colleagues were too right wing to sit on a case.⁶³He was fined, albeit for conduct plainly much less serious than that of Mr Orlov.

[200] We were referred to a number of decisions of the European Court of Human Rights.⁶⁴We do not consider it necessary to discuss them in detail, but we accept they support a lesser level of penalty.

[201] Looking at domestic decisions, the Disciplinary Tribunal considered its outcome to be consistent with the cases of practitioners Hart and Parlane.⁶⁵We see each case as having different features. The comparable aspect of Mr Hart’s case was the way he also declined to properly engage with the allegations. But his actual offending was quite different and directly affected clients. He also had previous convictions.

[202] Mr Parlane also obstructed the workings of the Committee. He acted in a belligerent and unprofessional manner, and displayed many of the features that have been mentioned in this case. But again his underlying misconduct involved treatment of clients, offending seen by the Disciplinary Tribunal to be more serious than his subsequent abuse of Law Society officers.

[203] In contrast to these cases we were referred to many examples of speech as misconduct where the outcomes have been much lower in terms of penalty. The

⁶⁵Hart v Auckland Standards Committee 1 of New Zealand Law Society, above n 58; Parlane v

Messrs Bradbury and Muir.⁶⁶In some no action has been taken and the most severe sanction in these cases is a small fine. Our assessment at a broad level is that none came close to the sustained misconduct involved here. We do not wish to engage in some sort of exercise comparing the types of comment. We are also not to be taken as saying the response in those cases was adequate. However, we acknowledge that we consider Mr Orlov has fairly raised them in support of a claim that his penalty is disproportionate.

[204] The factors we have identified lead us to conclude that striking off was a disportionate response. We differ from the Disciplinary Tribunal because we place more weight on the nature of the misconduct (speech) and we consider the nature of the reoffending risk is not such as to deter us from giving Mr Orlov a second chance. We also generally consider that striking off is too severe a response to a first offence of misconduct involving speech. We have made it clear what we consider the likely outcome will be should he not modify his conduct.

[205] We do not need to consider what an appropriate sanction would be. Mr Orlov has been struck off for eight months and no further penalty is required.

[206] 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. 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.

[207] 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}

⁶⁶Re Hong [2013] NZLCDT 9; Moodie (2013) National Standards Committee 6804; Dr Tony Molloy QC (2012) National Standards Committee 6446; Bradbury and Muir (2013) National Standards Committee 6743.

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.

[208] 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.

[209] 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.

[210] 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. Accordingly, although the convictions as amended by the judgment are confirmed, the order striking Mr Orlov off the roll of barristers and solicitors is quashed.

[211] Each party has had a measure of success. We suggest that costs lie where they fall, but memoranda may be filed if agreement cannot be reached. Any such

_{memoranda must reach the Court within three weeks of the release of this
judgment.}

Hearing: Court:	24 - 26 June 2014 Ronald Young and Simon France JJ
Counsel:	Appellant/Applicant in Person W C Pyke for Respondents R J Hollyman as Amicus Curiae
_Judgment:	_{21 August 2014}

I	Introduction
[1]	Mr Orlov was a litigation lawyer based in Auckland.	Five charges of

High Court of New Zealand Decisions

Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987; [2015] 2 NZLR 606 (21 August 2014)