The quality of integrity - a review of the Court of Appeal’s decision in Wingate and Evans v SRA; SRA V Malins [2018] EWCA Civ 366 in the context of Legal Services Regulation

Shockwaves (at least within the professional discipline world) followed the recent decision in Malins v SRA [2017] EWHC 835 (Admin) as the very existence of a “lack of integrity” offence hung in the balance (see earlier blog by Iain Miller, Lack of Integrity – Has it just been abolished?).  This break with tradition was, however, short lived and the combined appeal of Wingate and Evans  v SRA; SRA V Malins [2018] EWCA Civ 366 has now restored much of the status quo. But what is this “nebulous” concept of integrity in the context of the SRA’s Code of Conduct? What does that mean for solicitors, barristers and legal executives trying to uphold it?

Background

In this case, the Court of Appeal considered two separate appeals, both linked to the meaning of integrity and dishonesty. Wingate and Evans, in short, involved a partner of a law firm signing a loan agreement, knowing that he could not meet the terms of the contract, and assuming that it would be superseded by another version that had been agreed orally. At first instance, the SDT found that signing the ‘sham’ funding agreement amounted to a lack of integrity, a concept which involved only one objective test. The Respondents unsuccessfully appealed this decision in the High Court.

Similarly, Malins involved a partner backdating a letter and sending it to the other side in order to recover an ATE premium where the original form had been lost. A finding by the SDT against Mr Malins was subsequently overturned by the High Court, which held that dishonesty and lack of integrity were synonymous, and that the SRA’s failure to plead dishonesty in the first instance meant that the matter needed to be re-tried.

The cases were listed together in the Court of Appeal which enabled the Court to conclude definitively that, although linked, ‘lack of integrity’ did not equate to dishonesty.

Integrity defined

Lord Jackson’s judgement reviewed a historic catalogue or “kaleidoscope” of cases touching on the meaning of integrity and how it could be distinguished from dishonesty. He cited Newell-Austin v Solicitors Regulation Authority [2017] EWHC 411 (Admin), in which integrity amounted to “moral soundness, rectitude and steady adherence to an ethical code”. Bolton v Law Society [1994] 1 WLR 512 also cited, went further, with Sir Bingham MR arguing that:

(a)ny 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”

Indeed, this idea that solicitors (and by extension, barristers and legal executives) should be held to an additional yet distinct ethical standard tied directly to the nature and the practicalities of their work formed the basis of Jackson’s own analysis. Although it should be noted however that he tempered this view with the assertion that "(t)he duty of integrity does not require professional people to be paragons of virtue”.

Where Jackson considered honesty to be “a basic moral quality which is expected of all members of society”, 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”. Therefore, dishonesty was simply an “aggravating feature”, rather than a discrete offence under the Code. In the context of Malins’ backdated letter, the act of creating the letter demonstrated a lack of integrity, but it was by virtue of the letter being sent to the other party that the aggravating element of dishonesty was added to the mix.

What does this mean for legal professionals?

In the main, Jackson’s ruling restores the traditional interpretation of “a lack of integrity” pre-Malins. It is however worth noting that he refrained from any comment concerning the case of Bar Standards Board v Howd [2017] EWHC 210 (Admin), in which the court found that “inappropriate and offensive social or sexual behaviour" was not relevant to professional integrity. As such, it will be interesting to see if this position remains unchallenged as #MeToo spreads to the legal profession (see the Lawyer’s Recent Survey on sexual harassment in law).

The case also highlights a few practical points for legal professionals which are summarised below.

• First, Jackson’s review of the relevant cases is a helpful summary identifying types of behaviour that amount to “a lack of integrity”. These are as follows:

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).

• Second, 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”.
   
• Third, 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”).
   
• Fourth, medical evidence is unlikely to exculpate an act which lacks integrity, although it can be used in mitigation to explain how the Respondent interacted with the SRA during the disciplinary proceedings. Moreover, previous good character, according to Mr Justice Holman, “can do little to mitigate the seriousness of misconduct or the sanction that must follow”.
   
• Fifth, in stating that a professional disciplinary tribunal (as compared to a jury “drawn from the wider community”) has “specialist knowledge of the profession to which the respondent belongs and of the ethical standards of that profession”, Jackson argued that “(t)he decisions of such a body must be respected, unless it has erred in law”. It can therefore be construed that a disciplinary tribunal’s decision as to what amounts to lack of integrity within the profession will be given considerably more weight than the verdict of a jury or any other judicial panel.

Conclusion

The quality of integrity is no longer strained. Dishonesty is no longer a synonym, and no longer needs to be pleaded by the SRA in order to bring home an allegation under Principle 2 of the SRA Rules.  Fundamentally, legal professionals are reminded of their distinct positioning in the regulatory world and are encouraged to think whether their actions, though honest, might contravene a higher standard of professionalism.