Solicitor struck off for lying about counsel attending mediation

SDT: Sanction was appropriate

A solicitor who “reluctantly” admitted that he acted dishonestly in telling the other side of a dispute that counsel would be attending a mediation, when she had not been instructed, has been struck off.

Deian Wyn Benjamin argued that he felt forced into feigning a position of strength and that the opponent’s solicitors, who reported him to the Solicitors Regulation Authority (SRA), exaggerated the impact of his mistake.

But approving an agreement to strike him off, the Solicitors Disciplinary Tribunal said that though it was clear Mr Benjamin admitted the allegation of dishonesty “reluctantly”, the sanction was “appropriate, proportionate and in accordance with the sanctions guidance”.

Mr Benjamin said in mitigation that “whilst the rules on such matters deem such conduct to be dishonest, the outcome of this matter and the loss of a young solicitor’s career, I believe, is draconian.

“My wrongdoing and punishment do not match the impact such actions had on this matter in my view”.

Mr Benjamin, who qualified in 2008, was a senior associate at RDP Law in Newport at the time, but is currently unemployed.

He was acting for the defendant in a contract dispute and, ahead of a mediation, told the solicitors for the other side, Freeths, and the mediator that he and counsel would attend.

However, on the day of the mediation, Mr Benjamin attended alone, saying counsel had pulled out at short notice due to a family emergency. In fact, he later admitted, he was trying to give the impression of confidence when he believed his client was actually in a weak position.

The mediation went ahead but did not reach a successful conclusion.

Freeths then discovered that counsel had not actually been instructed to attend – the firm said it would not have proceeded with the mediation had it known in advance that she would not be there. Freeth estimated its costs of the mediation at more than £8,000.

Freeths reported what happened to the SRA after RDP decided not to, saying it was not sufficiently serious, but would be dealt with internally.

In lengthy mitigation which was not endorsed by the SRA, Mr Benjamin – who subsequently resigned from RDP – submitted that the “effect and impact” of his actions were minimal, as they occurred pre-proceedings.

“Admittedly, my actions were rash, were an isolated incident, foolish and wholly uncharacteristic of me and my professional position and experience.

“I have and will continue to regret such actions and will forever regret making such comments which have and will continue to affect me and my professional career for the rest of my life.”

Mr Benjamin accused Freeths of trying to “over exaggerate and compound the alleged impact on their client and their firm unnecessarily in order to take full advantage of my error of judgment by trying to possibly obtain some form of a satisfactory outcome for their client or have me/my former employer removed from the matter by making such a reference to my former employer and the SRA in respect of this matter”.

He noted that Freeths could have decided not to go ahead with the mediation and questioned the level of its costs.

Mr Benjamin claimed he had been instructed to make the claimant incur cost, and felt pressure from RWP “to keep my client happy and to ensure future work could be provided by the client to the practice”.

He also blamed a lack of “adequate and robust supervision”, and suggested having lost two close members of family shortly before the incident may have affected his mental health: “Being an only child who has also lost both parents at a relatively young age, such a loss was harder for me to take than I cared to admit.”

He added: “I believe I was set up to fail not only by my client, but possibly by experienced individuals who should have known that the approach in the draft position statement [which said counsel would attend] was unsustainable and incorrect, contrary to the SRA’s rules and code of conduct.”

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