In the case of Malins V SRA (2017) the appellant, solicitor John Michael Malins, created himself a backdated Form N251 in order to meet a deadline on the 1st of April 2017, and claimed that the document was sent to the correspondent and his opponent Hill Dickinson during March 2017. This happened for the reason that if ATE premiums were taken out after the deadline of 1st of April, the costs of the premium insurance would not be recoverable. After the issue came up in a conversation between the two parties where Hill Dickinson claimed he never got the document, Malins continued supporting his claim that the email had been sent. However, on the 4th of November 2014, Malins sent a self-report to the Solicitor Regulation Authority (SRA) in which he openly admitted to create the backdated document. In violation of principles 2 and 6 of the Solicitors Regulation Authority Principles 2011, he was found guilty by the Solicitors Disciplinary Tribunal (SDT) with charges of dishonesty for sending the Form N251 and lacking integrity for the creation of the backdated document.
Relevant legal issues were raised in the case such as if the appellant should be considered guilty of both charges of dishonesty and lack of integrity even though in the Solicitor Regulation Authority (SRA) Code of Conduct Principles, these two terms are mentioned separately therefore, there is no direct correlation between the two terms. In addition, another legal issue that arises is the issue of whether the solicitor took into consideration character and medial evidence to support or undermine his liability and credibility. This supporting claim made the tribunal’s analysis to be considered insufficient.
As for the analysis of the legal issues, first of all, as it was mentioned previously in this case comment, in the Solicitor Regulation Authority (SRA) Code of Conduct only integrity is mentioned, “you must act with integrity”, and there is no reference to dishonesty. Therefore, the appellant could argue that he was not informed about facing charges that are relevant to “dishonesty” because it was nowhere mentioned, making the allegations false. Morris J, based on the cases of Hoodless and Blackwell v FSA 2003, Scott v SRA 2016 and Chan v SRA 2015, distinguished a principle differentiating dishonesty and lack of integrity. However, critically thinking, some could argue that anyone could claim of being ignorant towards the issue of dishonesty in order to avoid the charges.
On the other hand, as can be understood by the case of Newell-Austin v SRA 2017, there is evidence supporting that there is not a difference any more between dishonesty and lack of integrity. Therefore, based on this statement it would only be logical to claim that there is a positive correlation between the two words which everyone must be able to understand.
Additionally, the consideration of medical and character evidence was overlooked which was the ratio decidendi making the Tribunal’s analysis inadequate. To begin with, the medical records showed that he was suffering from severe depression at the time frame when the act took place, which constitutes evidence that could give an explanation to his acts. Furthermore, the appellant’s credibility was considered to be established through his own words in the self report he made to the SRA, during which he admitted on being “ashamed” of as his actions, which were “totally unacceptable”. Continuing, he admitted to have done “something initially very stupid, driven to an extent by other pressures … at the time” and promised to never repeat these kind of action again. However, his credibility could be questioned as there is a possibility that he confessed for his own advantage, as the Tribunal rejected his claim that the situation was intentional as a defense.
In my personal opinion, besides the critical commentary already presented according to the legal issues which outlined why the case should have not been held on appeal, one could think about applying a rather practical approach. Based on this approach, the fact that the claimant was working as a solicitor in the legal service industry where people expect from them to be particularly professional, sincere and trustworthy, could act as supporting argument why the decision to remove his license was necessary and thus appropriate.