Law Society of New South Wales v Ivanstoff [2004] NSWADT 296 (17 December 2004)

Last Updated: 20 December 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Law Society of New South Wales v Ivanstoff [2004] NSWADT 296


PARTIES: APPLICANT
The Council of the Law Society of New South Wales
RESPONDENT
Mariana Ivantsoff




FILE NUMBERS: 042007

HEARING DATES: 17/12/2004

SUBMISSIONS CLOSED: 17/12/2004



DECISION DATE: 17/12/2004

BEFORE: Fox R - Judicial MemberPheils J - Judicial MemberCostigan M - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

CASES CITED:

APPLICATION: Application for order prohibiting barrister or solicitor from employing specified person (s.48I)

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
D Barton, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
G Walsh, solicitor

ORDERS: Order made pursuant to section 48 I (2)(b)


Reasons for Decision:

REASONS FOR DECISION

1 The Law Society seeks an order under section 48I of the Legal Profession Act 1987 against Mariana Ivantsoff. It is alleged and admitted that the respondent between mid December 2000 and mid June 2002 held herself out as a solicitor and was employed as a junior solicitor, whilst she had not completed a Practical Legal Training Course and was not admitted as a Legal Practitioner.

2 The respondent graduated with a Bachelor of Laws degree from Southern Cross University in May 2000, and had attended the College of Law Course of Practical Legal Training from January to April 2000. She failed several components of that course and so was not yet entitled to be admitted to the profession. She attempted those components later on during the year 2000, after some reinstruction but was again not successful.

3 In December 2000, whilst being interviewed for employment as a solicitor with Pieterse & Pieterse, she admits to having said untruthfully "I was admitted as a solicitor about a week ago". She was employed as a junior solicitor and that employment continued until December 2001. In January 2002 she was employed as a paralegal for 6 weeks with the same firm.

4 In February 2002 the respondent applied to Hicksons Lawyers and made the same misrepresentations of qualification. She commenced work on 11 March 2002. Shortly after the commencement of her employment the respondent was asked to produce her annual practicing certificate renewal form and was unable to do so. The matter came to a head on 13 June 2002 when after several assertions of entitlement she finally admitted that she was not eligible for admission and was dismissed.

5 The Law Society by consent at the hearing amended its Application and sought orders in the alternative under section 48I (2)(a) and (b). The reply conceded the facts, but averted to an illness and said that she was now a fit and proper person to be employed in connection with a solicitor’s practice.

6 The facts of the respondent’s illness are, that apparently as a consequence of her parents’ marital breakdown in January 1999, in April 2000 she was diagnosed as having an anxiety disorder. However, this condition remained untreated until Mr Walsh, solicitor, when taking instructions in July 2002, referred her to Dr Klug, consultant forensic psychiatrist. Dr Klug gave evidence before the Tribunal and confirmed his diagnosis of panic disorder with phobic symptomatology and superimposed depressive symptoms which have "probably been present since 2000".

7 Since initial diagnosis the respondent has been treated in Sydney by Drs Clarke and Rowan-Kelly. In May 2003 she moved to London and has continued her treatment there on several occasions with Dr Pierides. Dr Pierides’ statement of 19 November 2004 was in evidence before us. He observes "Mariana has a diagnosis of mixed affective state (anxiety and depression). In my view she does not have a personality disorder. She has excellent insight into her problems."

8 It appears that the respondent has been fully employed in administrative and research roles, sometimes in law-related work. She is currently residing in London and has full employment in an administrative/research role. She intends to remain in London for some years more, but her visa would require renewal in May 2005.

9 We were asked to contemplate the respondent’s right to admission, she having very recently passed two of her outstanding College of Law courses, and is awaiting the result of the third. We considered this aspect on the assumption that she would pass her outstanding examination. We note that the statutory test set by section 48I contemplates a more extreme level of unfitness than that which may be relevant for admission as a legal practitioner. The test set is "unfit to be employed by a barrister or solicitor" as compared with what could be paraphrased as "unfit to exercise the duties and privileges of a legal practitioner".

10 The evidence before us, including the cross examination of the respondent, does not satisfy us that the respondent is not a fit and proper person to be employed by a solicitor in a role as legal clerk or paralegal. However, we observed the respondent to be distressed while giving evidence, and as lay observers would question if her rehabilitation is complete. It is not for us to comment at this time on her fitness to be admitted to practice.

11 The admitted evidence clearly established conduct of a very serious nature, not acceptable in a legal practitioner. Accordingly we are comfortably satisfied that the respondent, had she been admitted to practice, would have been guilty of professional misconduct within the meaning of Part 10.

12 ORDERS

13 1. It is not established that Mariana Ivantsoff is not a fit and proper person within the meaning of section 48 I (2)(a) of the Legal Profession Act 1987.

2. We find that Mariana Ivantsoff pursuant to section 48 I (2)(b) of the Legal Profession Act 1987 has been guilty of conduct which had she been admitted as a legal practitioner, would have constituted professional misconduct within the meaning of Part 10.

3. No order as to costs.