What does acting with honesty and integrity mean for a lawyer?

New lawyers have to comply with many rules. There are (to name but a few) Money Laundering and, Data protection regulations, formal professional rules, Codes of Conduct as well as less well defined ethical principles.

The trend, for solicitors at least, seems to be towards written codes which are less detailed and some might say less helpful to the new practitioner. This makes it all the more important to get a grip on underlying ethical principles as soon as possible.

This is more than just learning the contents of diminishing written codes and rules; it is essentially about understanding what it is for a lawyer to act with integrity. The meaning of integrity has recently been clarified in Wingate & Anor v The Solicitors Regulation Authority [2018] EWCA Civ 366, in which the Court of Appeal found that members of the profession will be held to higher standards than members of the public.

The Court of Appeal also considered the relationship between a lack of integrity and dishonesty which had been thrown into doubt with an outlying (and now overturned) judgment by Mostyn J in the case of SRA v Malins [2017] EWHC 835 and which departed from a long line of authorities in finding that integrity was synonymous with honesty.

The Solicitors’ Code of Conduct 2011 contains ten compulsory principles and a breach of any one of these principles may result in disciplinary proceedings before the Solicitors Disciplinary Tribunal. The Principles embody the key ethical requirements for solicitors and the second principle requires solicitors to “act with integrity”.

Honesty, however, is not an explicit requirement of the SRA principles or the Code; it is a basic moral standard expected of the public. As such the SRA may, in its tribunal allegations, characterise the breach of a specific rule or principle as dishonest. If there is a finding of dishonesty it will be an aggravating factor to that breach and reflected in the disciplinary sanction by the tribunal. A finding of dishonesty will also involve a finding of lack of integrity because to behave dishonestly is to fall below the standard of integrity required. A finding of dishonesty will almost always lead to striking off or disbarment.

In addition, any aspiring solicitor will need to satisfy the SRA’s suitability test which requires applicants to the roll to disclose spent and unspent criminal convictions (unless protected, i.e. committed whilst a minor and the relevant period has expired).  Offences of dishonesty will result in a rejection of an application unless there are special circumstances. This means that prospective solicitors need to act with honesty and integrity before they enter the profession

What is dishonesty?

Lord Justice Jackson described dishonesty as “a basic moral quality which is expected of all members of society.  It involves being truthful about important matters and respecting the property rights of others.  Telling lies about things that matter or committing fraud or stealing are generally regarded as dishonest conduct.” 

The recent case of Ivey v Genting Casinos [2017] UKSC 67 set out a new test to establish dishonesty both in a civil and criminal context: “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.”

What is integrity?

Lord Justice Jackson found integrity less easy to define as it is a more nebulous and broad concept.  He stated that 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… 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.”

He described it as connoting an “adherence to the ethical standards of one’s own profession. That involves more than mere honesty.”  It is therefore not enough that solicitors act in accordance with the rules or simply refrain from being dishonest.

What does this mean?

As a lawyer you will be required to behave in a way which demonstrates an ethical fitness to practice; to act with integrity.

Of course, the duty to act with integrity does not mean that solicitors and other professionals must be “paragons of virtue” and conduct which may lack integrity in a professional’s private life will not always demonstrate that he or she would lack the integrity required for the profession unless it impacts upon the way in which that profession serves the public.

In the grey areas it will need to be an individual’s well-tuned sense of what is proper that will keep him or her out of trouble. However, care is required because this is an area in which single misjudgements can be career ending.

Michael Colledge is a senior associate at Russell-Cooke in the dispute resolution team and a contributor to the Law of Legal Services published in August 2015

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