Is it time to re-visit Bolton?

10 August 2018

If you’re in any way involved in the world of professional regulation it can’t have escaped your attention that the definition of what may constitute a lack of integrity has recently been defined, and arguably widened, by the Court of Appeal. 

Given that the goalposts as to what conduct may lead to a finding of lack of integrity have now shifted, do we also need to revisit the approach to sanction in these cases?

In his well-known Judgment in Bolton v Law Society [1994] 1 WLR, the then Master of the Rolls Sir Thomas Bingham said:

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. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings or penalties. In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced by the solicitor, ordered that he be struck off the role of solicitors." (Our emphasis.)

The justification for this is of course the passage by Sir Thomas Bingham which is so often cited in regulatory proceedings that it has become something of a soundbite: “…the reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price”.

Conduct which may amount to a lack of integrity has until recently been viewed as similar to that of dishonesty.   In the case of Hoodless v Financial Services Authority [2003] UKFSM, the tribunal stated “in our view 'integrity' connotes moral soundness, rectitude and steady adherence to an ethical code. A person lacks integrity if unable to appreciate the distinction between what is honest or dishonest by ordinary standards”.  On that formulation, it is easy to see why a finding of lack of integrity may naturally result in a suspension or strike-off. 

However, the Court of Appeal judgment in Wingate and Evans [2018] EWCA Civ 366 widens the scope of what may be considered to amount to a lack of integrity as it was held that:

As a matter of common parlance and as a matter of law, integrity is a broader concept than honesty. …Integrity is a more nebulous concept than honesty. Hence it is less easy to define, as a number of judges have noted.  In professional codes of conduct, the term 'integrity' is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members… The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards.“

It therefore seems that a solicitor may be found to lack integrity even if there was no deliberate wrongdoing.  Whilst such conduct may be serious, it may not have been the type of conduct which Sir Thomas Bingham envisaged when he said that solicitors acting with less than complete integrity must expect severe sanctions.  Sir Thomas Bingham was applying his mind to “integrity, probity and trustworthiness” and his view of integrity seems to take its colour from trustworthiness and probity.  Both of these concepts are akin to dishonesty.

The recent case law shows that there has been a shift in the approach of the courts to the types of behaviour which might give risk to a finding of lack of integrity.  It is important to recognise the implications of this in the approach to sanction.  If a solicitor can be found to lack integrity even though his actions were reckless rather than deliberate, should the starting point in terms of sanction be lowered?     

I expect the courts will have to grapple with this issue before too long.  In the meantime, a professional who is making submissions in relation to sanction after being found to have acted without integrity may wish to refer to the fact that the traditional approach to sanctions in these types of cases might no longer be appropriate. 

Further information

Should you require any further information on this issue please contact our regulatory team.  

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