Solicitor struck off without being able to defend dishonesty charges

The High Court has ordered the retrial of a solicitor found guilty of dishonesty by the Solicitors Disciplinary Tribunal without being given the chance to defend the allegations.

John Michael Malins was struck off the roll in April 2016 after backdating and sending a letter and notification form for the recovery of an after-the-event insurance premium.

The former Bond Dickinson partner had been charged with acting without integrity in respect of the creation of the documents, and of acting dishonestly only for sending them.

However, Mr Justice Mostyn said, the tribunal had in effect based its decision on findings of dishonesty at all stages and Malins had been deprived of the opportunity to respond to the charges.

‘Any fair reading of […] the tribunal’s judgment is that the appellant was found guilty of serious dishonesty. Yet, dishonesty had been explicitly eschewed, and had never been properly spelt out against him,’ the judge said in Malins v SRA [2017] EWHC 835 Admin.

‘I do not dispute that as findings of fact the findings were open to the tribunal to make. However, they are all stained with dishonesty. They were made in violation of the basic rule that if you are facing a case of dishonesty you have to know you are facing a case of dishonesty. As such they cannot stand,’ Mostyn J said.

The judge, noting that there was no explicit requirement in the SRA’s code of conduct to behave with honesty, turned to the Oxford English Dictionary to try to distinguish it from integrity.

In a statement which will cause consternation among regulatory lawyers, he said it was ‘obvious that based on the dictionary definitions honesty and integrity are synonymous’.

Further on, while acknowledging ‘the iconic decision’ of Bolton v Law Society, he said ‘no attempt was made to explain the difference between the two concepts’.

And he couldn’t agree with Mr Justice Holman’s ruling in Wingate that ‘not all lack of integrity involves dishonesty’. ‘If this were right, then the SRA could side-step the requirement of proving the subjective element of dishonesty in any case by the simple expedient of charging the same facts as want of integrity.’

This led the judge to also take issue with the way in which the findings of dishonesty in relation to the use of the documents were reached. The tribunal ruling on that point said Malins ‘chose to create and deploy backdated documents as if they were genuine copies of originals and in doing so the respondent knew that he was being dishonest and the subjective test was therefore satisfied’.

In searing criticism of the SDT, Mostyn J remarked: ‘These findings demonstrate the insuperable cross-border problems faced by the way that these changes were framed. The very basis of the findings of dishonesty was reached using findings in relation to the creation of the documents that were contaminated and which had been reached in violation of a basic right of the appellant.’

And to the SRA’s counsel, who sought to argue that the wording had been an editorial error, he replied: ‘It was of a piece with a flawed process which bedevilled this case from the start.’

In 2013, Malins acted for a client in a construction dispute and organised ATE cover in the prospect of litigation. New provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were about to come into force, requiring ATE insurance to be notified to the other party before 1 May 2013 if it were to be recoverable.

There was no dispute that the defendants had been told about Malins’s client taking out ATE insurance in the run-up to the deadline. There were no records, however, of the required notification form ever being sent.

When a settlement was later agreed, the defendants refused to pay the cost of the premium. In May 2014, Malins downloaded a blank form, backdated it, and filled it in, along with an old letterhead from his previous firm – which by then had merged with Dickinson Dees to form Bond Dickinson.

Malins then scanned the documents and emailed them to the head of department at Hill Dickinson, the defendant’s firm, in the hope that this would prompt her to search the archive for a copy of the documents which he said he was sure he had sent at the time.

Malins later notified the firm of the episode as a circumstance that might lead to a claim under the firm’s indemnity policy and eventually self-referred to the SRA.

In a letter, Malins expressed remorse and said he made ‘such a foolhardy decision’, saying he had been under pressure. He had been under ‘very significant stress’ because of personal and work circumstance, and he was willing to apologise in person to his client and to the defendant’s solicitors. But he didn’t escape referral to the SDT and being struck off.

In a final attack on the SDT’s approach, Mostyn J said Malins had relied on character and medical evidence ‘showing that he was suffering from serious depression’.

‘It is well established that such evidence needs to be treated with proper respect and subjected to fair analysis,’ the judge said. ‘Yet, it was given very short shrift indeed. In my judgment, the analysis was seriously inadequate.’

Jean-Yves Gilg is editor in chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg