Is there a difference between dishonesty and lack of integrity?

Is there a difference between dishonesty and lack of integrity? Until the judgment of Mr Justice Mostyn in Malins v SRA [2017] EWHC 835 (12 April 2017), the received wisdom in solicitors’ disciplinary cases was ‘yes’. As Mr Justice Holgate had noted in SRA v Wingate [2016] EWHC 3455: ‘While all dishonesty involves a lack of integrity, not all lack of integrity involves dishonesty.’

The distinction usually relied on is that a finding of dishonesty can only be made where a person is both objectively and subjectively dishonest. By contrast, lack of integrity does not require the subjective element. A person can lack integrity if they follow their own code of beliefs which they do not appreciate are wrong but which transgress honest standards of behaviour.

In Malins, Mostyn J controversially took the view that ‘want of integrity and dishonesty are not only the same thing but must be proved to the same standard’. In this article we explain why, in our view, he is incorrect.

The respondent solicitor in the case created and relied on backdated correspondence notifying his client’s opponent in litigation that his client had after-the-event insurance. The Solicitors Regulation Authority charged the respondent with a lack of integrity in creating the documents but with dishonesty in sending them. It is hard to see the justification for the different approach to the charges, which led the Solicitors Disciplinary Tribunal into confusion over whether the creation of the letters was said to be dishonest or not.

Grappling with this confusion, Mostyn J concluded that ‘want of integrity and dishonesty are not only the same thing but must be proved to the same standard in my judgment’. It was not the first time that Mostyn J had tackled the question; in the 2015 case of Kirschner v General Dental Council [2015] EWHC 1377, the seeds of his Malins decision are evident.

Should disciplinary cases draw on trusts or criminal law?

In Kirschner, Mostyn J drew heavily on the law on dishonesty in the context of trusts and criticised cases in the disciplinary field for failing to keep up. He took the view that disciplinary cases had stuck inappropriately to Twinsectra v Yardley [2002] 2 AC 164, which was authority for the proposition that, in order for the court to make a finding of dishonesty, not only must an act be objectively dishonest but ‘the defendant must himself appreciate that what he was doing was dishonest by the standards of honest and reasonable men’.

Mostyn J pointed out that in 2006 in Barlow Clowes International v Eurotrust International [2006] 1 All ER 333 the Court of Appeal suggested that Twinsectra had gone too far. The key issue was whether the defendant knew the elements of a transaction which made his participation transgress ordinary standards of honest behaviour, rather than whether he had thought about what those standards were.