Honesty, Integrity and Ethics: Fundamental Principles of Solicitors Conduct (copy)

Honesty, Integrity and Ethics: Fundamental Principles of Solicitors ConductProfessional Indemnity InsuranceThis article looks at the fundamental principles of solicitors conduct and how the #MeToo scandal has brought this to the forefront of the legal professionContents

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The issue of a solicitor’s conduct has not been far from the public eye over recent months with a number of high profile cases bringing in to question the behaviour of members of the legal profession, in particular, cases involving sexual misconduct. In the wake of the #MeToo scandal a record number of cases were reported to the SRA last year¹ and it is expected that there will be a further number of cases being referred to the Solicitors Disciplinary Tribunal (SDT) this year.Honesty, integrity and behaving ethically are fundamental to what it means to be a solicitor and failing to act with these moral characteristics diminishes the confidence and trust the public places in the legal profession and the provision of legal services. The courts set the standard with regard to solicitors’ honesty in Bolton v Law Society [1993] EWCA Civ 32² by stating that solicitors are required to be “trusted to the end of the earth”.In respect of integrity, a person has integrity when they have honest qualities and live by strong moral principles. As professionals, solicitors must act honestly, morally and ethically to a higher standard than is expected by society.This characteristic was identified by Lord Justice Jackson when delivering his judgment on recent Court of Appeal cases Wingate & Evans v SRA and SRA v Malins [2018] EWCA Civ 366³.In these cases the Court ruled that dishonesty and lack of integrity are not synonymous. When considering dishonesty, a person must be both objectively dishonest by everyday moral standards and act with the knowledge that their actions were wrong (Twinsectra Ltd v Yardley [2002] UKHL 12⁴).In SRA v Wingate & Anor [2016] EWHC 3455 (Admin)⁵ Mr Justice Holman said that dishonesty and integrity were not the same and whilst “all dishonesty involves a lack of integrity, not all lack of integrity involves dishonesty”.

In the wake of the #MeToo scandal a record number of cases were reported to the SRA last year

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^{1. Beioley, K. (2019, September, 27). London law firms sex scandals near record high. Financial Times. Retrieved from https://www.ft.com/content/267dc422-df78-11e9-b112-9624ec9edc59

2. https://www.bailii.org/ew/cases/EWCA/Civ/1993/32.html

3. https://www.bailii.org/ew/cases/EWCA/Civ/2018/366.html

4. https://publications.parliament.uk/pa/ld200102/ldjudgmt/jd020321/yardle-1.htm

5. https://www.bailii.org/ew/cases/EWHC/Admin/2016/3455.html (paragraph 47(1)}

In Newell-Austin v SRA [2017] EWHC 411 (Admin)⁶ Mr Justice Morris defined integrity as “a moral soundness, rectitude and steady adherence to an ethical code”. Furthermore, an individual may lack integrity even if they have not been “established as being dishonest” and an objective test must be applied to establish the lack of integrity.In recent years we have seen more emphasis being placed on the behaviour and conduct of individuals in positions of trust and responsibility. The legal profession has not been immune from this, and the SRA’s new Standards and Regulations (STaRs)⁷, which came into force on 25 November 2019 separated out the principles of honesty and integrity as two distinct values and requirements under Principles 4 and 5 respectively⁸. To maintain the trust that the public places in the legal profession it has become imperative that these characteristics and behaviours are embedded in a law firm’s culture and the SRA has recognised its responsibility to “promote a culture where ethical values and behaviours are embedded” within its regulated community.⁹The SRA has maintained that it will take a robust approach to individuals falling short of the standards expected and will take disciplinary action against those individuals found to be acting with a lack of integrity. Such action may result in a referral to the SDT and strike off from the Roll of Solicitors for the most serious offences. The new STaRs¹⁰ introduced a requirement that all individuals connected with a law firm should report potential breaches of the SRA’s standards or requirements including behaviours that may present a risk to clients or public interests.This is not just imposed on solicitors but anyone within the firm and that they can be subject to an SRA investigation.Examples where such action will be taken against a law firm or an individual for a lack of integrity include¹¹ :-

a wilful or reckless disregard of standards, rules, legal requirements and obligations or ethics, including an indifference to what the applicable provisions are or to the impacts or consequences of a breach

taking unfair advantage of clients or third parties or allowing others to do so

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^{6. https://www.casemine.com/judgement/uk/5a8ff72d60d03e7f57ea928f (paragraphs 47(3) and 48)

7. Solicitors Regulation Authority. (2019). Standards and Regulations Resources. October 2019. Retrieved from the Solicitors Regulation Authority website: https://www.sra.org.uk/solicitors/standards-regulations-resources/

8. Solicitors Regulation Authority. (2019). Retrieved from the Solicitors Regulation Authority website: https://www.sra.org.uk/solicitors/standards-regulations/principles

9. Solicitors Regulation Authority. (2019). Retrieved from the Solicitors Regulation Authority website: https://www.sra.org.uk/sra/strategy-2017-2020/sub-strategies/sra-enforcement-strategy/

10. Solicitors Regulation Authority. (2019). Standards and Regulations Resources. October 2019. Retrieved from the Solicitors Regulation Authority website: https://www.sra.org.uk/solicitors/standards-regulations-resources/

11. Solicitors Regulation Authority. (2019). Acting with Integrity. Retrieved from the Solicitors Regulation Authority website: https://www.sra.org.uk/solicitors/guidance/ethics-guidance/acting-with-integrity/}

misleading clients or third parties or allowing clients or third-parties to be misled (except where this is a result of simple error that the regulated firm or individual has corrected as soon as they became aware of it)

knowingly or recklessly causing harm or distress to another

In respect of dishonesty, examples of when action will be taken include ¹²:-

taking or using someone else's money without their knowledge or agreement

lying to, or misleading someone

knowingly bringing a false case to a court

giving false information to their firm's insurer

misleading a court, tribunal and or a regulator

lying on a CV and misleading law firm partners

backdating or fabricating documents

helping others to act improperly

The new STaRs focus on the ethical standards expected of those it regulates and the SRA’s new Enforcement Strategy¹³ considers types of conduct that are deemed unacceptable, there is a clear and strong message that stringent sanctions will be imposed for serious acts of misconduct.

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^{12. Solicitors Regulation Authority. (2019). Acting with Honesty. Retrieved from the Solicitors Regulation Authority website: https://www.sra.org.uk/sra/decision-making/guidance/general-dishonesty/

13. Solicitors Regulation Authority. (2019). SRA Enforcement Strategy. October 2019. Retrieved from the Solicitors Regulation Authority website: https://www.sra.org.uk/sra/strategy-2017-2020/sub-strategies/sra-enforcement-strategy/}

The SRA is maintaining a robust approach to such conduct and at the SRA’s Compliance Officer Conference held last October, the Chief Executive Paul Philip stated that:

‘Some people say that the regulator shouldn’t be involved in this type of thing. I beg to differ. For the most part we are talking about breaches of our code, either through an abuse of authority or a lack of integrity.

‘We will always take action where that is the case. Given the changes in societal expectations we will see more of that in the coming years.’¹⁸

^{14. Hyde, J . (2019, November, 4). News focus: Compliance officer conference highlights regulatory burden. The Law Gazette. Retrieved from: https://www.lawgazette.co.uk/news-focus/news-focus-compliance-officer-conference-highlights-regulatory-burden/5102033.article}

^{15. Hyde, J . (2019, November, 6). Tribunal workload Slashed as SRA fails to take up sitting days. The Law Gazette. Retrieved from: https://www.lawgazette.co.uk/news/tribunal-workload-slashed-as-sra-fails-to-take-up-sitting-days/5102060.article}

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In light of the numbers of cases being considered during 2020 and the reporting obligations imposed on individuals to report such issues under the new STaRs, it is likely that the conduct of solicitors will be under greater scrutiny for some considerable time and it is anticipated solicitors conduct and regulatory sanctions will continue to be a defining feature of 2020.

Joanne Cracknell ^{MSc LLB (Hons)}
Associate Director