Is there a difference between dishonesty and lack of integrity?
In Malins v SRA, Mostyn J has overlooked the strong reasons why there is a subjective aspect of dishonesty in disciplinary cases, write Ben Hubble QC and Helen Evans
Is there a difference between dishonesty and lack of integrity? Until the judgment of Mr Justice Mostyn in Malins v SRA  EWHC 835 (12 April 2017), the received wisdom in solicitors’ disciplinary cases was ‘yes’. As Mr Justice Holgate had noted in SRA v Wingate  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  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  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  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.
In Kirschner, Mostyn J suggested that the Barlow Clowes test should apply to all civil proceedings, including disciplinary proceedings. The same approach pervades his Malins decision.
The views of Mostyn J about the relevance of trust law are open to challenge. The criminal test for dishonesty, derived from R v Ghosh  QB 1053, is often cited in disciplinary cases. It focuses on whether the defendant has acted dishonestly according to the ordinary standards of honest people and, if so, whether the defendant himself must have realised that what he was doing was by those standards dishonest. It requires the very subjective element which Mostyn J asserts should not apply in light of Barlow Clowes.
There is ample authority that, in the disciplinary arena, the Ghosh and Twinsectra approach should prevail. In Bryant v Law Society  EWHC 3043 the court made clear that Barlow Clowes did ‘not call for any departure’ from the Twinsectra test. Although disciplinary proceedings are not criminal in character, the serious consequences that could flow from a finding of dishonesty made it ‘just as appropriate to require a finding that the defendant had a subjectively dishonest state of mind’.
What is a lack of integrity?
Having excised the need for the subjective aspect of dishonesty, Mostyn J was unable in Malins to identify behaviour that would amount to lack of integrity but fall short of being dishonest. If he had been made aware of the decision of Mr Justice Morris in Newell-Austin v SRA  EWHC 411 (Admin) on 3 March 2017, he might have found a good example. In that case, the solicitor had acted without integrity by allowing her firm to become involved in transactions that bore the hallmarks of mortgage fraud in which she did not personally participate.
Where does this leave disciplinary proceedings?
The decision in Malins, if followed, would have a serious impact on those currently involved in disciplinary proceedings. As it is, the present uncertainty creates difficulties for the SRA in deciding how to charge solicitors, and worse problems for solicitors considering whether or not to admit to a breach of SRA principle 2 and a lack of integrity.
We consider that in Malins, Mostyn J has overlooked the strong reasons why there is a subjective aspect of dishonesty in disciplinary cases and there should be a different test for lack of integrity. His approach is problematic, and in our view should not prevail.
Ben Hubble QC and Helen Evans are barristers at 4 New Square