Sharp LJ: “a person can lack integrity without being dishonest”
The High Court has rejected an appeal against striking off from a solicitor who “neither thought nor cared about” the rules governing his profession.
Lady Justice Sharp rejected Robert Franklin Scott’s argument that the fact he was not found to be dishonest meant it was not open to the Solicitors Disciplinary Tribunal (SDT) to conclude that he lacked integrity.
“A person can lack integrity without being dishonest. One example which applied here, was by being reckless as to the use of various client accounts.
“As the SDT found, the appellant had not enquired as to the reasons for the improper payments and transfers out of client account; he had not cared at all about what he was instructed to authorise, and he had not shown any steady adherence to any kind of ethical code.
“Accordingly it was not so much a case of what the appellant thought, but that he neither thought nor cared about what was required by the rules governing his profession, of which he was aware.”
The court heard in Scott v SRA [2016] EWHC 1256 (Admin) that Mr Scott, 48, was a member of Key 2 Law LLP, which was closed by the Solicitors Regulation Authority (SRA) in November 2012.
Mr Scott, who has not practised since then, was declared bankrupt in April 2014 and struck off by the SDT in June that year. He was ordered to pay costs of £42,500.
Sharp LJ said the SDT found that the solicitor had failed to deal with the SRA “in an open and timely manner” and breached the Accounts Rules.
He was also found to have permitted money to pass in and out of client account when not accompanied by a legitimate underlying legal transaction, provided banking facilities through client account and failed to run his business effectively.
Mr Scott was accused by the SRA of acting dishonestly in relation to the first four charges. He denied acting dishonestly or with a lack of integrity.
The SDT found that although Mr Scott’s conduct was objectively dishonest, the subjective requirement for dishonesty was not met. However, it did find that his conduct lacked integrity.
Mr Scott argued on appeal that the fact he was found not to have acted dishonestly, should have led to his ‘acquittal’ of a lack of integrity.
However, Sharp LJ said of the solicitor: “There was not one iota of evidence that he had stood back and asked himself if it was right to make payments, sometimes to organisations he did not know.
“It was telling there was no evidence to support the legitimacy of the transactions. These were serious allegations that went directly to fitness to practise.”
She concluded: “The SDT clearly considered the matter ‘in the round’ as they were entitled to in my judgment.
“On the facts, including the admitted or proven breaches which involved culpability and a consideration of what was in the appellant’s mind at the time, it seems to me that the SDT’s findings of recklessness and lack of integrity were not only justified but inevitable.”
On sanction, Sharp LJ said: “Here the misconduct was found to be ‘very serious’. The appellant had shown a lack of integrity with respect to the management of his client account. The conduct in question had taken place over 19 months. Substantial sums were involved.”
She ruled that the SDT’s conclusion on sanction could not be faulted and dismissed the appeal.
Mr Justice Holroyde agreed, for his own reasons, that Mr Scott’s appeal should be dismissed.
He said: “It is worth emphasising the general point to which Sharp LJ has referred, that dishonesty and a lack of integrity are not synonymous terms.”
Holroyde LJ went on: “To take a hypothetical example, suppose a solicitor had repeatedly taken monies from the client account, used them for his own purposes, and from time to time made good the deficiency when he found it convenient to do so.
“Suppose that when challenged by his professional body, his response was that he knew he was not supposed to treat the client account in that way, but did not think that it really mattered as long as the monies were repaid, and did not think that anyone would regard him as dishonest.
“He might on that basis be acquitted of subjective dishonesty; but it surely could not be suggested that he had not shown a lack of integrity.”
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