Dishonesty vs lack of integrity in solicitors’ disciplinary proceedings

Understanding the distinction between dishonesty and lack of integrity is vital for the insurers of solicitors due to its effect on cover: insurance for related civil claims and defence costs is usually excluded where dishonesty is established by a tribunal or a court.

Dishonesty vs lack of integrity: same thing?

Lack of integrity is not a concept known to the criminal law; it is peculiar to disciplinary proceedings.  Disciplinary codes take differing approaches.  For example solicitors are required only to “act with integrity”.  Dishonesty can of course be alleged, but has to be specifically pleaded.  The Bar Code of Conduct requires barristers to act with “honesty and integrity”, suggesting that they are distinct concepts, but rolled up together.  This causes problems because breach of the Barristers’ Code is often pleaded with no distinction between the two offences, leading to confusion over whether dishonesty is actually alleged, or only lack of integrity. 

Where the nature of the allegation is unclear, professionals may find themselves at a tribunal hearing facing dishonesty allegations which they were not expecting to have to meet. 

Why does it matter?

The distinction between dishonesty and lack of integrity is vitally important for professionals and their insurers due to

(a) the serious consequences professionally of a dishonesty finding – striking off is the usual sanction, and

(b) the effect on insurance cover – cover for related civil claims and defence costs is usually excluded where dishonesty is established by a tribunal or a court.

The relevance of the dishonesty test has come to the fore in a string of recent disciplinary cases which have considered the distinction between dishonesty and lack of integrity, and which test should apply in order to establish one or the other. Historically, in order to establish that a defendant had been dishonest, it was necessary to show both that their actions would be regarded by a right-thinking observer as dishonest (the objective element) and that the defendant appreciated that this was so (the subjective element). Proving a lack of integrity has not required any subjective element; it is sufficient that others would consider the defendant’s actions improper.

Malins v SRA

In Malins v SRA [2017] EWHC 836 (Admin) (12 April 2017) Mostyn J set aside a Tribunal decision by which a solicitor was found to have been dishonest in the creation and sending of back-dated documents to cover up an earlier mistake.  He was only charged with dishonesty in relation to sending the documents out, representing them to be true copies, with a lesser charge of lack of integrity in relation to their creation.  The Tribunal clearly struggled to separate out the creation of the false documents from the act of sending them, and made findings of fact which clearly pointed to dishonesty in both respects.  Mostyn J ruled that the defendant had not been afforded a proper opportunity to defend the case against him, because dishonesty, if alleged, must be properly spelled out in the charge.

Mostyn J attributed the problem which had arisen to the difficulty of having to maintain a “cordon sanitaire” between two concepts which, in his view, are really the same thing.  He went on to add that “Want of integrity and dishonesty are not only the same thing but must be proved to the same standard, in my judgment.”  He did not elaborate what the standard should be

Malins ignored: Libby, Williams & Bellis

The Malins judgment has fuelled a great deal of debate in the field of professional discipline by seeking to equate lack of integrity with dishonesty.  More recent cases have side-stepped the Malins decision altogether. 

It does not appear to have been referred to in SRA v Libby [2017] EWHC 973 (Admin) (3 May 2017). The solicitor in that case had used litigation funding for purposes clearly not permitted by the funding agreement.  The Tribunal had found that the solicitor genuinely believed he was entitled to use the money for general practice funding, so had not demonstrated a lack of integrity by doing so.  The Administrative Court held that the solicitor had been so careless in failing to comply with the terms of the funding agreement that this amounted to misconduct.  Even though the test for dishonesty was not met, the level of carelessness was such as would undermine the trust that the public would have in the profession. (The Court did not directly address the question of whether that misconduct  equated to a “lack of integrity” so we are none the wiser as to whether a distinction was to be drawn between integrity and honesty, contrary to Malins.”)

In a more recent decision of 21 June 2017, Williams v SRA [2017] EWHC 1478 (Admin) the Malins judgment was mentioned but not relied on by either side.  Counsel for the appellant “expressly disavowed any intention to invite the court to adopt the decision in Malins v SRA as correct on this point” and the Court stated “It is not therefore necessary to consider the issue further”.  The judgment confirmed that “in the field of solicitors’ regulation, the concepts of dishonesty and want of integrity are indeed separate and distinct.  Want of integrity arises when, objectively judged, a solicitor fails to meet the high professional standards to be expected of a solicitor.  It does not require the subjective element of conscious wrongdoing.”

Another good example is the recent SDT decision in SRA v Juliet Bellis, 15 August 2017:  The Tribunal described the solicitor’s state of mind as a “fog of confusion” which left her unable to see that she was acting where a conflict of interest existed in a transaction she did not understand.  Her failure to seek help or withdraw constituted a lack of integrity, but her lack of appreciation (the absence of the subjective element) meant that she was not guilty of dishonesty.

Effect of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67

This recent decision of the Supreme Court concerned a civil claim in which the Defendant casino refused to pay out £7m of winnings on the ground that the Claimant had been cheating.  The Court accepted that the Claimant believed what he was doing was acceptable gamesmanship, but determined that he was dishonest based on the test applied in civil cases, which does not require any subjective understanding – it considers only the standards of ordinary decent people.  In so doing, the Supreme Court went on to rule that the same test for dishonesty should now also be applied in criminal cases and, by necessary implication, disciplinary proceedings. 

The test for dishonesty in disciplinary cases is therefore now essentially an objective test.  The Tribunal must determine what the defendant knew as a matter of fact.  If an ordinary decent person, knowing what the Defendant knew, would regard that conduct as dishonest, then the Defendant is guilty of dishonesty even if he believed his conduct was acceptable.

This change to the dishonesty threshold in disciplinary proceedings makes the difference between dishonesty and lack of integrity even harder to see.  If dishonesty no longer requires an element of conscious wrongdoing, then the distinction drawn in Williams v SRA (above) melts away. 

Many of the attempts to define lack of integrity rely on this objective/subjective distinction as to whether the defendant knew they were acting dishonestly.  Holman J in SRA v Wingate & Anor [2016] EWHC 3455 (Admin) said “Whilst all dishonesty involves a lack of integrity, not all lack of integrity involves dishonesty.  The law requires a subjective element to any finding or conclusion of dishonesty, but the question whether a person lacked integrity is objective.” 

In the light of the Ivey decision, Tribunals will now find it much more difficult to draw a line between cases where the defendant knew an action was dishonest by normal standards but did it anyway (dishonesty) and those where the professional persuaded themselves that it was acceptable, or perhaps just chose not to think about it at all (lack of integrity, but now also possibly dishonesty).  The idea of pushing the boundaries, or performing some sort of self-persuasion or “double-think” to justify the conduct, is key here.  This can take the form of failing to check the correct approach (eg Libby, above) failing to speak up when others are acting dishonestly, or failing to seek help when out of one’s depth (eg Bellis). 

Up to now, tribunals have been able to sanction this kind of self-delusion without having to make a finding of dishonesty, with all its consequences.  That path will be harder to take in future cases, and it may be that the distinction between dishonesty and lack of integrity will now disappear, in line with Mostyn J’s approach in Malins.  An alternative approach would be to draw the line between conduct which an ordinary decent person would regard as dishonest by “ordinary” standards, and conduct which meets “ordinary” standards but nonetheless falls short of the higher standards expected of professionals, in whom the public place a higher level of trust.  This appears to have been behind the thinking in Williams, but we need a much clearer definition of where the distinction (if any) between honesty and integrity now lies, since the lowering of the dishonesty threshold.