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Allegations of dishonesty and lack of integrity

When looking at the conduct of those it regulates, in addition to considering whether there have been breaches of its rules and Codes of Conduct, the SRA will consider whether there have been breaches of its Principles.

The SRA looks upon potential breaches of Principle 4 (dishonesty) and Principle 5 (lack of integrity) particularly seriously. Where dishonesty or a lack of integrity is either admitted or ultimately proven before the Solicitors Disciplinary Tribunal (“SDT”), serious sanctions will be imposed. The courts have consistently held that this is necessary to uphold confidence in the profession and ensure that solicitors can be “trusted to the ends of the earth” (Bolton v Law Society [1993] EWCA Civ 32).

The approach the SRA, SDT and courts take to dishonesty is set out in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts […] When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

An admission or finding of dishonesty is extremely serious and almost invariably results in strike off. In SRA v Sharma [2010] EWHC 2022 (Admin), Coulson J stated that a strike off would be the “normal and necessary penalty”, although he recognised that there could be “exceptional circumstances” resulting in “a small residual category where striking off will be a disproportionate sentence in all the circumstances”.

This has been interpreted narrowly by the courts. In 2018 the High Court overturned three SDT decisions in which the tribunals had found dishonesty proven beyond reasonable doubt but then decided there were exceptional circumstances that meant a sanction less than strike off was appropriate.

In overturning the decisions in a conjoined appeal by the SRA, the Administrative Court held that mental health issues, specifically stress and depression, cannot “without more” amount to exceptional circumstances (SRA v James & Others [2018] EWHC 3058 (Admin) per Flaux J).

The effect of the High Court’s decision was to reassert the stock position that strike off will almost always follow from an admission or finding of dishonesty.

Conduct demonstrating a lack of integrity can be understood as conduct breaching the higher ethical standards expected of members of the profession. It is a broader concept than dishonesty and can involve such matters as a reckless disregard for rules and ethical standards or the consequences of breaching them. Recklessness, however, is not a necessary ingredient of a finding of lack of integrity.

The most recent authoritative description of what integrity means in practice comes from Wingate and Evans v SRA and SRA v Malins [2018] EWCA Civ 366, per Jackson LJ:

“Integrity is a useful shorthand to express the higher standards which society expects from professional persons and which professions expect from their own members … [Professionals] are required to live up their own professional standards … Integrity connotes adherence to the ethical standards of one’s own profession”.

It is to be judged objectively (Williams v SRA [2017] EWHC 1478 (Admin), per Carr J). Examples given by the SRA in its guidance include recklessly making improper payment from client accounts and failing to adequately protect clients from fraud.

In its enforcement strategy, the SRA notes that dishonesty or lack of integrity are factors in favour of imposing the more severe sanctions, suspension and striking off.

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