Written by Alex Beresford (Trainee Solicitor)
The distinction between integrity and dishonesty in professional regulation continues to be in the spotlight. After a number of cases and commentary attempting to grapple with the concept of integrity in particular, Mostyn J in the case of Adetoye v SRA [2019] EWHC 707 (Admin) may have confused the issue further.
Last year, Wingate v SRA [2018] EWCA Civ 366 appeared to shed some light on the difference between integrity and dishonesty, confirming that the two concepts were not synonymous. Jackson LJ made the distinction that honesty is "a basic moral quality which is expected of all members of society" whereas integrity, on the other hand, "connotes adherence to the ethical standards of one's own profession. That involves more than mere honesty." (To see our previous blog on this case, please click here). Generally we have been discussing with clients and at training events, possible examples of a "lack of integrity" when dishonesty does not arise. We wonder whether all serious departures from a profession's Code of Conduct might potentially be classified as such or perhaps serious breaches such as accessing confidential material, grossly incompetent management, a failure to tell the "whole truth" might be useful examples.
In the present case, the Solicitors Disciplinary Tribunal (SDT) suspended Mr Adetoye from practice for two years in 2018 after it found he had acted without integrity on four occasions. He has been the Compliance Officer for Legal Practice at his firm. The firm was involved in a case which involved reliance on false and deliberately exaggerated documents. The SRA commenced disciplinary proceedings against four partners of the firm. It was recognised that the culpability of Mr Adetoye was much less than those of his co-defendants, who were struck off. Mr Adetoye appealed the sanction of suspension which was imposed, arguing that there was an error in that the Tribunal did not explicitly consider the availability of a less restriction order. Mostyn J dismissed the appeal and ruled that where integrity had been found lacking, the starting point for sanctions should be suspension.
Mostyn J noted the legal debate about what 'integrity' actually means. He highlighted that there is a dispute between two schools of thought, one which (including him) regards the two concepts of 'integrity' and 'honesty' as synonymous and one which regards the concepts as describing different standards of moral conduct. He referred to Williams v SRA [2017] EWHC 1478 (Admin) which supports the latter, quoting Leveson LJ at [130]: "Professional standards, however, rightly impose on those who aspire to them a higher obligation to demonstrate integrity in all of their work." He also quoted the Wingate case referred to above.
Mostyn J, however, commented that he struggled to understand "why in a professional misconduct case dishonesty is conduct to which no more obloquy could possibly attach, and, on proof of it, will lead, almost invariably, to the culprit being struck off". He continued "if integrity denotes a higher moral standard than honesty, then it must surely follow that want of integrity is baser conduct than common-or-garden dishonesty. But the sanctions they respectively attract do not reflect this hierarchy of turpitude […] Doing the best I can to reconcile these conflicting messages from the higher courts I consider that I have to regard acting without integrity as involving greater moral turpitude than mere dishonesty but that, paradoxically, the former will generally attract a lesser sentence than the latter.”
Whilst Mostyn J considers these to be conflicting messages, it could be argued that a lack of integrity is less serious than dishonesty. If a range of departures from the ethical code demonstrate a lack of integrity it must be possible that some of these fall below honest in the "hierarchy of turpitude".
The fact that integrity is 'honesty plus more' does not of itself mean that a lack of integrity is more severe and requires more severe sanction. This might be the case if 'integrity' exists as an inflexible concept which is always the same standard, but in practice this is not the case. There are numerous standards of conduct imposed on professionals. Some are considered more serious than others. Some vary between professions. It therefore follows that integrity could be both a higher or lower standard depending on the circumstances.
Mostyn J found the tribunal to have impliedly considered a restriction order in its statement "[t]he tribunal considered that the appropriate sanction was a suspension as there was a need to protect the public by immediately removing the third respondent from practice. There was no less a sanction that could achieve this" but then goes on to say that where want of integrity is proved, the starting point should be suspension, with the tribunal working its way downwards if there are exceptional mitigating features. This contrasts with the general rule that tribunals work from the least severe sanction up but perhaps draws on the other case law from the legal regulators and particularly SDT cases which have clearly stated that dishonesty will result in striking off unless there are exceptional circumstances.
This case leaves open the question of how useful the concept of integrity is, whether it is equal to honesty and how it should be treated for sanctioning purposes in comparison to dishonesty. It is important for those facing allegations to be able to understand and be clear of the nature of the misconduct being alleged – after the relative post-Wingate calm, Mostyn J's judgment in Adetoye has once again put the issue in the spotlight, attracting substantial comment. Further clarification may be needed from the Court and we should watch to see if Mostyn's new starting "tariff" for lack of integrity gains traction.