n a case for the annuls it has surfaced that Chief High Court Justice Anthony Randerson conducted his own investigation in 2009 and recommended the New Zealand Law Society consider “disciplinary action” against two Auckland barristers.
The case is unique because judges are not empowered to conduct investigations – and certainly not of their own volition – against lawyers.
In a letter dated 18 December 2009, then-Chief High Court Judge Randerson sought NZLS President John Marshall QC take disciplinary action against Barristers Evgeny Orlov and Frank Deliu because each complained about his fellow judge Rhys Harrison to the Judicial Conduct Commissioner.
Randerson offered no specifics other than to say the lawyers’ complaints were dismissed by then-JCC Ian Haynes, suggesting this indicated the lawyers had suspect motives.
Haynes fielded almost 400 complaints against judges in his 3 years as JCC. None were deemed worthy of a formal investigation. Four were referred to the Head of Bench. As Chief Judge, Randerson was the recipient of such referrals against High Court judges. This supervisory judicial role raises additional conflict concerns of Randerson’s complaint to the NZLS. The targeted lawyers see it as an overtly oppressive warning to other lawyers not to complain.
The NZLS, which could not legally open a complaint on the ethereal allegations of Judge Randerson, nonetheless stated its immediate intention “to commence an investigation of its own motion in relation to the concerns raised” by the judge. It is understood that the NZLS has since informed Mr Orlov that they intend to prosecute him. A similar decision in respect to Mr Deliu is expected within days.
When first informed of the complaint, Mr Orlov responded to the Chief Judge and the NZLS. To the Chief Judge, Orlov expressed “greatest respect for you as a judicial officer”, then requested by what authority the Chief Judge had conducted his investigation and recommendation – asking specifically what documents Randerson based his disciplinary recommendation upon.
Justice Randerson did not respond. The Chief Judge further refused to consider Orlov’s request, supported by the JCC, that he bar Harrison J from presiding over Orlov’s future cases.
From the NZLS, Orlov sought clarification on what he called the “unprecedented” action to prosecute him, asking “What in fact I am alleged to have done or not done.”
The NZLS failed to respond with specific allegations.
Messrs. Orlov and Deliu both expressed surprise that raising professional concerns about a judge through proper channels had singularly made them subject of a disciplinary recommendation by that judge’s superior.
Deliu has taken it a step further, filing a pre-emptive Bill of Rights claim against the Law Society in the Auckland High Court. In his claim Deliu asserts that taking disciplinary action against him merely for complaining about a judge to the JCC is political oppression of free speech. He notes the Law Society’s prosecutorial powers are largely confined to regulated services (an exception being if the lawyer robs a bank on his free time) and there is no suggestion the Law Society’s pursuit of him relates to his conduct as a lawyer or any criminal offending. Deliu told kiwisfirst he was initially reticent to make comment which could be construed as provocative, but then offered “As an officer of the Court, I am obliged to raise concerns I have about a judge.”