Are integrity and honesty one and the same?
Wingate and Evans v SRA; SRA v Malins [2018] EWCA Civ 366 (March 2018)
Following a multitude of case law, the Court of Appeal decided that lack of integrity and dishonesty are not synonymous in the context of a solicitor's professional conduct.
Background
This combined appeal focussed on the concepts of dishonesty and integrity in separate instances of professional breaches of the Solicitors' Code of Conduct ("the Code").
In Wingate, a law firm partner signed a loan agreement in the knowledge that he could not fulfil the contractual terms, assuming that the agreement would be superseded by a separate, orally agreed version. The Solicitors Disciplinary Tribunal ("SDT") found that the partner lacked integrity by virtue of him signing the sham agreement, applying a purely objective test, but did not make a finding as to dishonesty as the SRA did not pursue this allegation. Upholding the finding, the High Court held that Mr Wingate did not act with integrity, in breach of Principle 2 of the Code; the judgment did not refer to dishonesty.
In Malins, a partner backdated a notice of funding which was sent to the other side in order to circumvent a bar to recovery of an insurance premium where the original notice had been lost. Overturning the SDT's finding, the High Court found dishonesty and lack of integrity to be one and the same. Since the Solicitors Regulation Authority ("SRA") had failed to plead dishonesty in the first instance, the matter needed to be re-tried.
Court of Appeal decision
The case focused on whether the integrity that is expected from professionals, particularly those in professions which involve adherence to ethical standards (such as solicitors), requires more than mere honesty.
In his judgment, Jackson LJ distinguished honesty and integrity, stating that honesty is "a basic moral quality which is expected of all members of society". Integrity, on the other hand, is "a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members". Jackson LJ accepted however that "the duty of integrity does not require professional people to be paragons of virtue".
In his judgment, Jackson LJ (referring to relevant case law) set out examples of behaviour demonstrating a flagrant and deplorable departure from the standards of the profession. This behaviour, which might be regarded as reckless, will be required for a finding of a lack of integrity. A few of these examples are:
i. A sole practice giving the appearance of being a partnership and deliberately flouting the conduct rules (Emeana);
ii. Recklessly, but not dishonestly, allowing a court to be misled (Brett);
iii. Subordinating the interests of the clients to the solicitors' own financial interests (Chan).
Impact
The judgment confirms that dishonesty and integrity are no longer synonymous, and solicitors do not need to have been dishonest to breach Principle 2 of the Code. The decision, whilst providing long sought after clarity, does pose some interesting questions, such as whether the finding is confined to SRA proceedings or whether it can be extended to other disciplinary contexts such as healthcare regulation. The SRA, and other legal and financial regulators, can now continue to distinguish between lack of integrity and dishonesty charges and can choose to pursue the most appropriate allegation. Some may suggest that proving lack of integrity is a less arduous task than establishing dishonesty (even in the post Ivey v Genting world where a subjective realisation is no longer required). However, if this new approach is rolled out amongst other regulators, it will not necessarily be 'easier' to prove. Regulators will still need to ensure that any dispute as to lack of integrity is linked to the role of that professional and the duty they owe to the public.
It might also be thought that such allegations add little other than an additional aspect to prove in healthcare regulation where we already have the concept of impaired fitness to practise, sometimes described as suitability to be on the register without restriction and captured in types of impairment such as "misconduct" which have to be proved. One argument is that this existing process already effectively determines whether the registrant has met "the higher standards which society expects from professional persons and which the professions expect from their own members".
If allegations of lack of integrity are pursued, codes of conduct may be more closely scrutinised to detail what ethical standards are expected from professionals. In such cases, it is likely that it may be possible for regulators to succeed in establishing a lack of integrity given 'integrity' is a recurring feature of the codes of conduct for doctors, nurses and pharmacists, to name a few.