Integrity – what it means for solicitors and other professionals

The SRA and other regulators frequently bring disciplinary proceedings based on “a lack of integrity”. Principle 2 of the SRA Principles 2011 provide that “you must act with integrity”. Failure to do so has serious consequences, despite the difficulty encountered hitherto in defining it. It is often used by the SRA as a fall back to a dishonesty allegation.

All is now changed. The recent decision in Malins v SRA [2017] EWHC 835 (Admin) heard along with Wingate and Evans v SRA; SRA V Malins [2018] EWCA Civ 366 has provided a working definition that applies to all members of a profession whether solicitors, barristers, legal executives, and accountants.

Background

The Court of Appeal considered two appeals together as it had an opportunity in both to address the meaning of integrity.

Integrity is central to membership of a profession, but it is not the same as dishonesty. That much is now clear.

The misconduct of Malins, Wingate, and Evans is not that important, although it is right to say they behaved poorly. Both cases provided an opportunity for the Court of Appeal to address the meaning of integrity for professionals.

Integrity defined

Some simple basic propositions remain unchanged and that is to be welcomed.

Bolton v Law Society [1994] 1 WLR 512 remains good law and is frequently cited:

"..any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal”

This principle is often applied by the ICAEW in its disciplinary prosecutions and it has wide application in professional regulation.


Newell-Austin v Solicitors Regulation Authority [2017] EWHC 411 (Admin) reminded us that integrity amounts to “moral soundness, rectitude and steady adherence to an ethical code”.

Jackson LJ, giving the leading judgment in Malins, Wingate and Evans considered honesty to be “a basic moral quality which is expected of all members of society”, and that integrity was “a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members”. He saw dishonesty as an “aggravating feature”, rather than a discrete offence.

He gave some simple examples:

  1. A sole practice giving the appearance of being a partnership and deliberately flouting the conduct rules (Emeana);
  2. Recklessly, but not dishonestly, allowing a court to be misled (Brett);
  3. Subordinating the interests of the clients to the solicitors' own financial interests (Chan);
  4. Making improper payments out of the client account (Scott);
  5. Allowing the firm to become involved in conveyancing transactions which bear the hallmarks mortgage fraud (Newell-Austin);
  6. Making false representations on behalf of the client (Williams).

A number of principles emerged:

Solicitors, barristers and other legal professionals conducting negotiations or making representations in court (for example) are expected to be “even more scrupulous about accuracy than a member of the general public in daily discourse”.

Acts which demonstrate a lack of integrity can also amount to “manifest incompetence” so as to fall foul of Principle 6 of the SRA Code (“you must behave in a way that maintains the trust the public places in you and in the provision of legal services”).

Medical evidence is unlikely to address acts which lack integrity, although it can be used in mitigation. Further, previous good character, according to Mr Justice Holman, “can do little to mitigate the seriousness of misconduct or the sanction that must follow”. Medical evidence is frequently used in this way before the SDT. It needs to be used with great care.

Conclusion

The SRA has released a number of warnings on various areas of practice, most notably on the use of Non-Disclosure Agreements, and inappropriate communications. Falling foul of these is unlikely to constitute dishonesty, but the way integrity has been defined now will certainly engage such conduct.

In short, both in and out of everyday work we are expected to adhere to higher standards of behaviour because we choose to be members of a profession. That said “neither courts nor professional tribunal’s must set unrealistically high standards. The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public”.

Whether or not acts perpetrated by professionals will demonstrate a lack of integrity will continue to be fertile ground for argument.

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