Victorian Civil and Administrative Tribunal|2013-10-03|Before: Mr J

Legal Services Commissioner v Adamakis (Legal Practice) [2013] VCAT 1736 (3 October 2013)

Legal Profession Act 2004 -s 4.4.3(1) - s4.4.4(a) - s6.2.24 - misconduct at common law - practitioner making two false statutory declarations about her periods of unsupervised legal practice and providing false CVs to prospective employers - unsatisfactory professional conduct - failing to notify the Board of changes in the information recorded in the register in relation to law practice.

The Tribunal finds the respondent guilty of misconduct at common law as preserved by section 4.4.3(1) of the Legal Profession Act 2004 (the Act), in that the respondent's conduct in making two statutory declarations which contained false declarations, and in creating two CVs which recorded a false employment history, would reasonably be regarded as disgraceful and dishonourable by professional colleagues of good repute and honesty.

The Tribunal finds the respondent guilty of one count of unsatisfactory professional conduct within the meaning of section 4.4.4(a) of the Act in that the respondent's failure to notify the Legal Services Board of the changes of the law practice at which the respondent was an employee from time to time within 14 days after any such change occurred was conduct which consisted of a breach of section 6.2.24 of the Act.

Direct the principal registrar to list the proceeding for hearing as to penalty before me at 10am on 20 November 2013.
The Tribunal notes, by way of information for the respondent who did not appear at the hearing today, that the applicant's counsel has indicated that the applicant will seek orders at the penalty hearing that the respondent be reprimanded, may not apply for a practising certificate for a period of 5 years, and shall pay the applicant's costs of the proceeding.

This proceeding concerns:
- two statutory declarations made by Ms Irene Adamakis, formerly Irene Gioutlou, on 6 August and 11 August 2009 in relation to whether she had completed the condition of supervised legal practice;
- three curriculum vitae she had provided to potential employers;
- information provided to the Legal Services Board of changes in her place of practice.
Ms Adamakis was admitted to practice in Victoria on 6 September 2004. She held a local practising certificate from 27 November 2006 to 30 June 2009.
Under the Act, her practising certificate was subject to the condition that she must engage only in supervised legal practice until she had completed a minimum period or periods equivalent to 18 months of supervised legal practice.
The Commissioner alleges that Ms Adamakis did not complete 18 months of supervised legal practice within the period November 2006 to June 2009, and that her two statutory declarations made in August 2009 as part of her application to remove the condition of supervised legal practice, were false.
The Commissioner also alleges that Ms Adamakis provided three CVs to prospective employers, which contained false and/or inconsistent information about her employment history, one of which was false, and two of which were inconsistent with the result that one of those two was false.
In relation to the statutory declarations and CVs, the Commissioner alleges that Ms Adamakis is guilty of professional misconduct or, in the alternative, misconduct at common law.
The Commissioner also alleges that Ms Adamakis engaged in unsatisfactory professional conduct in that she failed to provide complete and accurate employment information to the Legal Services Board in breach of section 6.2.24 of the Act.
Ms Adamakis has not held a practising certificate since 30 June 2009. The Law Institute of Victoria rejected her application for a practising certificate entitling her to practice as a principal without trust account operations for the year commencing 1 July 2009.
In September 2009, the Law Institute sent Ms Adamakis an information notice advising her of the decision to refuse her application to remove the statutory condition of supervision. The information notice relied upon Ms Adamakis' failure to complete the equivalent of 18 months supervised legal practice, amongst other matters.
Ms Adamakis did not seek a review of the decision of the Law Institute of Victoria and has not since that time applied for another practising certificate.
The Law Institute referred the matter to the Board and the Commissioner for investigation. At the conclusion of the investigation, the Commissioner made application to the Tribunal for orders.
The proceeding came on for hearing initially on 16 September 2013. Ms Adamakis did not appear on that date. She had not applied to the Tribunal for an adjournment, but had sought the consent of the Commissioner to an adjournment on the basis, she said, that she had to attend the funeral of a family friend on that date, and that her mother was in hospital.
In all the circumstances, including the serious nature of the allegations made, I adjourned the hearing to give Ms Adamakis a further opportunity to attend and/or be represented, and noted in the orders made that if she did not attend, the hearing might proceed in her absence.
Ms Adamakis did not attend the further hearing. While the Commissioner sought to rely on a notice to admit facts and documents, I preferred that the relevant facts and documents be the subject of evidence. The applicant called Ms Angela Barac, who is an Investigations Officer with the Commissioner and the Legal Services Board. Ms Barac gave evidence, which I accepted.
At the conclusion of the evidence I was satisfied that the Commissioner had proved the matters alleged, which I set out below.

It is a statutory condition of a local practising certificate that the holder must only engage in supervised legal practice until the holder has completed a minimum of 18 months of such supervised practice.[1]
In August 2009, Ms Adamakis applied for the condition of supervised legal practice to be removed from her practising certificate. As part of that application she provided two statutory declarations.
The content of the statutory declarations relates to the periods of supervised legal practice she completed.
The declarations contain the usual statement; 'I acknowledge that this declaration is true and correct and I make it in the belief that the person making a false declaration is liable to the penalties of perjury.'
On 6 August 2009, Ms Adamakis made the first statutory declaration in which the following statements were included:
- Her first practising certificate in Victoria was granted on 6 September 2004;
- Her supervised legal practice at Pearce Webster Dugdales commenced on 7 September 2004 and continued until December 2005;
- The second period of supervised legal practice was at State Trustees Limited and commenced January 2006 and continued until December 2006;
- The third period of supervised legal practice, at Mason Sier Turnbull, commenced January 2007 and continued until October 2007.
The Commissioner received the following information from the respective organisations:
- Ms Adamakis' employment at Pearce Webster Dugdales commenced in 2001 as a part-time employee, she commenced full-time employment and her articles of clerkship in July 2003, and her employment ended in September 2004 after she completed her articles;
- Ms Adamakis did not have any period of supervised legal practice at State Trustees Limited. Her employment commenced on 23 October 2006 and ended on 14 September 2007 and she was employed as an estate representative not as a legal practitioner. Her duties were administrative in nature and did not involve the provision of legal advice or the undertaking of legal duties;
- Ms Adamakis engaged in supervised legal practice at Mason Sier Turnbull for the period 12 November 2007 to 30 May 2008.
The records of the Legal Services Board establish that Ms Adamakis did not hold a practising certificate until 27 November 2006.
I accept the information provided by the respective organisations to the Commissioner, and the evidence that, after admission, Ms Adamakis did not hold a practising certificate in the period 7 September 2004 to 26 November 2006.
I find that the first statutory declaration was false in that:
- Ms Adamakis' first practising certificate in Victoria was not granted on 6 September 2004 as stated, but was in fact granted on 27 November 2006;
- She did not commence supervised legal practice at Pearce Webster Dugdales on 7 September 2004 and did not continue it until December 2005, in fact she ceased employment at Pearce Webster Dugdales in September 2004;
- She did not have any period of supervised legal practice at State Trustees Limited, whether from January 2006 to December 2006 or otherwise; she was employed by State Trustees Limited from 23 October 2006 until 14 September 2007 but not as a lawyer,; and
- The period of supervised legal practice at Mason Sier Turnbull did not commence in January 2007 and continue until October 2007, but was in fact 12 November 2007 to 30 May 2008.
I find that the true period of supervised legal practice up the end of 2008 was approximately five and a half months.

On 11 August 2009, Ms Adamakis made a second statutory declaration in which she stated:
- She was employed with Devenish Lawyers in Ringwood and practiced as a wills and estates lawyer from February 2009 until May 2009, under the supervision of John Scott-Mackenzie.
The Commissioner obtained the following information from the firm:
- Ms Adamakis engaged in supervised legal practice at Devenish Lawyers from 23 February 2009 to 13 March 2009 (a period of about three weeks) when her employment was terminated due to work performance and absences from work.
I accept the information provided and find that the second statutory declaration was false in that Ms Adamakis' period of supervised legal practice at Devenish Lawyers was not three months as stated, and she was not employed by Devenish Lawyers at all after 13 March 2009.
The combined effect of the two false declarations is that Ms Adamakis declared that she had engaged in four periods of supervised legal practice totalling 38 months. In fact, the true extent of her periods of supervised legal practice was no more than seven months, well below the 18 months required under the Act.

In the course of the Commissioner's investigation, the Commissioner received copies of three CVs Ms Adamakis gave to prospective employers as part of her employment application;
- A CV Ms Adamakis provided to State Trustees in August 2006, (the 2006 CV);
- A CV Ms Adamakis provided to Mason Sier Turnbull in September 2007, (the 2007 CV); and
- A CV Ms Adamakis provided to Devenish Lawyers in February 2009.
The 2006, 2007 and 2009 CVs record inconsistent details of her employment history.
The 2006 CV, which State Trustees received, stated that Ms Adamakis was employed by Pearce Webster Dugdales from April 2001 to October 2004, as a "paralegal-articled clerk-junior lawyer."
The information provided by Pearce Webster Dugdales did not clearly establish whether Ms Adamakis had any period of employment as a junior lawyer, and I make no findings about the 2006 CV.
The 2007 CV, which Mason Sier Turnbull received, stated that Ms Adamakis had been employed by Pearce Webster Dugdales as a lawyer from 2002 to 2006; and that from 2006 to the date of the CV she had been employed at State Trustees Limited as an "estate representative/corporate legal practitioner".
On the basis of the evidence and findings I have referred to above, I find that both those statements are false.
I note that Ms Adamakis had a corporate practising certificate for the period 27 November 2006 until 13 November 2007. There was no evidence before me about the basis on which Ms Adamakis applied for the practising certificate. On the basis of the information provided by State Trustees, I am satisfied that Ms Adamakis was not employed as a legal practitioner and did not engage in legal practice while at State Trustees.
That 2009 CV which Devenish Lawyers received, stated that Ms Adamakis had been employed as a commercial lawyer at the firm of Thomas Koutsoupias Lawyers from August 2005 to the date of the CV.
Thomas Koutsoupias of that firm confirmed to the Commissioner, in May 2012, that Ms Adamakis had never worked for the firm at any time.
I find that in the course of applying for employment with the law firms, Mason Sier Turnbull and Devenish Lawyers, Ms Adamakis provided CVs which contained false information about her employment history.

Professional misconduct or misconduct at common law

Charges 1 and 2, relating to the false statutory declarations and CVs were alternative charges:
- Professional misconduct within the meaning of section 4.4.3(1)(b): conduct that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice (charge 1); or

Misconduct at common law, as preserved by section 4.4.3(1) of the Act:[2] conduct in a professional capacity, which would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency[3] (charge 2).

The Commissioner elected to press charge 2, which is the more appropriate charge in my view. A finding that a person is not a fit and proper person is necessarily a finding as to their current fitness. Ms Adamakis has not been in practice since 2009, and the evidence in this case relates only to her conduct prior to that date.
In my view, the evidence in this case clearly establishes that Ms Adamakis has engaged in misconduct at common law and I find charge 2 proven.
Ms Adamakis made two false statutory declarations to the regulator.
The purpose of the statutory declarations was to support an application to remove the statutory condition of supervised legal practice, by showing that at least 18 months of such practice had been completed. The false declarations are in respect not only of the periods of such practice but also the periods of employment with various employers and the capacity in which they employed her.
Ms Adamakis gave false CVs to potential employers. By doing so, she has misled fellow practitioners, and has done so in the context of obtaining employment with those practitioners. In the case of the 2009 CV, she has fabricated not only the period of employment but also the fact of the employment.

Under the Act, a legal practitioner must notify the Board of any change in the name of the law practice at which the practitioner is an employee, within 14 days of the change occurring.[4]
As at 2 September 2009, the only information on the register (from Ms Adamakis) was that she had been employed at State Trustees from 24 November 2006 to 11 September 2007, and at Liselm Pty Ltd, trading as Mason Sier Turnbull, from 13 November 2007 to 6 June 2008. I note that those dates roughly equate to the periods Ms Adamakis worked at both Mason Sier Turnbull and State Trustees.
Ms Adamakis failed to notify the Board of either the commencement of her employment at Devenish Lawyers, or its termination.
Charge 3 is that Ms Adamakis' conduct in this respect was unsatisfactory professional conduct, which is a lesser charge than professional misconduct, and can include a contravention of the Act. I find that Ms Adamakis has engaged in unsatisfactory professional conduct in that she contravened section 6.2.24 of the Act.
Having made the above findings, the proceeding will be listed for a hearing in relation to any penalty to be imposed.

[1] See section 2.4.18: The period is 18 months where the holder completed articles of clerkship or their equivalent to qualify for admission; 2 years if the holder completed practical legal training to qualify for admission.

[2] By virtue of the word "includes" in s.4.4.3(1) -'professional misconduct includes ...'

[3] See Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where the definition was formulated in a case involving a medical practitioner_; Re a Solicitor: ex parte The Law Society_ [1912] 1 KB 302 where the definition was adopted in a case involving a solicitor; Myers v Elman [1940] AC 282 where the definition was approved by the House of Lords; and Re a Solicitor [1960] VicRp 96; [1960] VR 617 where the definition was applied in Victoria.

Legal Services Commissioner v Adamakis

At a glance

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Judgment (18 paragraphs)

Legal Services Commissioner v Adamakis (Legal Practice) [2013] VCAT 1736 (3 October 2013)

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Legislation Cited (1)