Solicitor who fabricated documents in bid to deceive tribunal and opposing lawyers struck off

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By Legal Futures

4 February 2016

SRA: solicitor admitted his actions

SRA: solicitor admitted his actions

The Solicitors Disciplinary Tribunal (SDT) has struck off a solicitor who failed to meet a deadline to submit applications to the First-tier Tribunal, and then fabricated documents which purported to show that he had, in an attempt to deceive both the tribunal and the other side.

The case of David Benaim, at the time a client partner at London law firm Clintons, is yet another of several recent examples of solicitors trying to mislead clients by fabricating documents.

Mr Benaim, born in 1966 and admitted as a solicitor in 1990, was instructed to handle lease extensions for 10 residential apartments in a London property.

He had six months to do apply to the First-tier Tribunal (Property Chamber), a time limit due to expire on 20 August 2014, after which the leaseholders would lose their right to extend their leases.

The SDT recorded that Mr Benaim thought he had submitted the applications, “but in error” failed to do so.

When contacted on 27 August by Speechly Bircham, solicitors acting for the landlord, he told them that the applications had been made in time, attaching a copy of a letter purporting to be sent by him to the tribunal on 1 August.

He later told Speechlys that he had called the tribunal on 14 August to confirm that it had received the applications.

When Speechleys told him the tribunal had no record of the applications, new applications were prepared, but Mr Benaim still maintained in correspondence with the tribunal that he had sent them on 1 August and called for confirmation on 14 August, and asked for a hearing to determine the matter.

This was listed but in the meantime the truth came out in an internal investigation carried out by Clintons. This found no evidence from Mr Benaim’s mobile phone record of him having called the court, and that an attendance note on the call from that day had actually been created on 3 September. It also emerged that the 1 August letter had been created on 27 August.

Mr Benaim admitted to the firm and later to the Solicitors Regulation Authority (SRA) and tribunal what he had done.

Despite his admitted dishonesty, Mr Benaim urged the SDT to find exceptional circumstances that would lead to a sanction other than striking-off.

He submitted that he had enjoyed an unblemished 25-year career in the law up to this point, and at the time was “under pressure from work as well as having other compelling external pressures, relating to his family”.

The SDT recounted: “The respondent expressed an overwhelming feeling of deep shame and regret at having let down his clients, the profession and himself, and stated that, even with the benefit of hindsight, he was unable to comprehend why he acted in the way that he did on 27 August 2014 and thereafter.

“The character references provided to the tribunal would show that his actions were completely out of character, and further, would demonstrate the high esteem in which he was still held by his previous colleagues and clients.

“The respondent highlighted his full co-operation with the [SRA], and further explained that, as soon as he became aware of the seriousness and gravity of his actions, he ceased practice despite being offered a consultancy, as he did not think it would be appropriate to continue to practise in all the circumstances.”

While noting that “the dishonest conduct was deliberate, calculated and repeated”, the SDT said it was “impressed” by Mr Benaim’s mitigation “in terms of his genuine insight, his early full and frank admissions and his co-operation with the [SRA]”.

But it concluded: “The tribunal acknowledged that the respondent was going through a difficult time at the time of the misconduct; however, it did not find that the circumstances of this case were enough to bring it in line with the residual exceptional circumstances category…

“The tribunal decided that in view of the serious nature of the misconduct, in that it involved admitted dishonesty, the only appropriate and proportionate sanction was to strike the respondent off the roll of solicitors.

“Whilst the tribunal accepted that the respondent had experienced difficult personal circumstances, including health issues (although there was no independent medical report to that effect), the tribunal did not consider that they constituted exceptional reasons such as to reduce the sanction.”

He was also ordered to pay £4,000 in costs.

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