SDT decision exposes unfairness

A senior associate who misled another law firm and a mediator has been struck off after that firm reported him to the regulator – even though his own firm decided to deal with him internally.

Freeths made a formal complaint to the Solicitors Regulation Authority (SRA) about Deian Benjamin while the COLP at his own firm took the view a self-referral to the SRA was not merited.

Benjamin was admitted in July 2008 and worked in the litigation team at Newport firm RDP Law at the relevant time.

In 2018, he had been instructed by a client and another party had been instructed by Freeths in relation to a contractual dispute.

Both parties agreed to use mediation as a form of ADR to try to resolve the dispute at an early stage.

In October 2018, Benjamin gave Freeths assurances both he and counsel would be attending the mediation at Freeths’ Birmingham offices, and stated this in a position statement drafted in readiness for the mediation given to both Freeths and the mediator.

In the event, Benjamin attended the mediation without counsel – and told the mediator that counsel had pulled out at short notice because of a family emergency.

The reality was that counsel had not been instructed to attend the mediation, and she was in fact on holiday for the entire period of the mediation.

Freeths discovered this through contacting counsel’s chambers direct.

As a result of Benjamin’s misrepresentations and dishonesty, Freeths’ client incurred mediation costs of more than £8,000 plus VAT.

Freeths reported Benjamin to the SRA for alleged misconduct.

Under the agreed outcome procedure, he was found by the SDT (who dealt with the matter on the papers) to have breached principles 2 and 6 of the SRA Principles and struck off the roll.

In mitigation, Benjamin conceded misleading Freeths and the mediator but submitted that he should have received “more adequate and robust supervision and guidance” from a senior member of staff.

He added that he believed he was “set up to fail not only by my client, but possibly by experienced individuals”.

Benjamin also admitted dishonesty but in a lengthy mitigation statement said that his admission was only because he had no means to defend the charge.

He said: “I found myself in a position where I had no other option other than to concede 19 such actions were dishonest, as I simply do not have the funds or financial resources to challenge such an assertion made against me.”

Susanna Heley, a partner in the solicitors regulatory team at RadcliffesLeBrasseur, described it as an “interesting decision”.

She commented: “I am particularly taken by the comment that the admission is made reluctantly but ‘in light of the current rules’ at paragraph 4” – possibly a veiled reference to the civil standard of proof.

“That said, I don’t think the SDT decision can be faulted on the basis of what was before it.

“The simple facts appear to be that Mr Benjamin was 10 years qualified at the date on which he deliberately sought to mislead an opponent. It wasn’t a one-off comment on the phone in a panic, later retracted.

“It was a deliberate attempt to persuade the other side that the case was endorsed by counsel when he knew it wasn’t and it was sustained over a period of weeks, including verifying his comments about Counsel’s non-attendance after the mediation in deceptive terms.

“He told his client it was a deliberate tactic which must indicate a measure of preplanning or forethought.”

She said it was difficult to see how that could have been anything other than dishonesty and the decision is “wholly in line with reams of authority”.

Heley added that it is possible, though unlikely that a hearing could have changed the outcome; “that an explanation could have been put forward which rendered his actions not dishonest based on some currently unknown fact or state of mind”.

“Perhaps the more interesting story”, she commented, “is that he would have gotten away with it had Freeths just reported it to his COLP who decided to deal with it internally.”

She added: “What on earth counsel’s clerks thought they were doing giving out details of the extent of [counsel’s] instruction by RDP to anyone other than RDP…?”

It was Freeths’ report to the SRA, she said, which made this outcome inevitable.

“That just emphasises how much impact reporting has – which in itself gives rise to a concern as to double standards in the profession – the most honest report infractions and take the (often very harsh) consequences and the least honest sweep it all under the carpet and keep right on practising unless they get caught out some other way.”