The Court of Appeal has more than doubled the fine imposed on a solicitor who claimed to have appeared in court as a McKenzie friend.
Terrence Ballard accused the Solicitors Disciplinary Tribunal of being biased against him as an innovator and guilty of procedural errors, but the appeal court rejected these arguments.
Instead, Lord Justice Beatson opted to increase the fine imposed against the solicitor at tribunal from £2,500 to £6,000.
Ballard had represented a client at Brighton and Hove Magistrates’ Court in August 2013 and was recorded as the ‘attending solicitor’. A fee of £750 was agreed after Ballard had provided him with a business card holding him out as a ‘solicitor/higher court advocate/legal consultant’.
In fact Ballard was banned at the time from acting as a sole practitioner or sole director of a firm, after his practice closed in 2011 following bankruptcy.
Ballard, who was employed by a regulated firm, said he was acting for the client as a McKenzie friend and was therefore exempt from SRA rules.
The Solicitors Disciplinary Tribunal decided last June, following a two-day hearing, that Ballard had breached the conditions of his practising certificate when acting on his own account in criminal proceedings.
Ballard was also found to have failed to act in the best interests of his client and failed to comply with directions from the Legal Ombudsman. The complaints handler had judged his service ‘woefully inadequate’ and directed him to repay the £750 and pay £250 compensation, but the ombudsman had to apply to Eastbourne County Court to enforce the order.
Ballard was fined £2,500 by the tribunal and ordered to pay £18,000 in costs.
The solicitor appealed against both the finding and sanction, while the SRA cross-appealed against the level of the fine.
At a one-day hearing last month, Ballard told the appeal court he was retained directly as a McKenzie friend providing non-reserved legal advice, and therefore could not be deemed a sole practitioner.
He further argued the ombudsman only had jurisdiction to investigate a complaint against a solicitor if they were acting on behalf of a regulated entity.
But Lord Justice Beatson ruled that Ballard was ‘plainly’ acting in his capacity as a solicitor and he rejected the submissions.
Ballard, the judge said, was a solicitor and had not sought permission from the court to act as anything otherwise.
‘Solicitors who remain on the roll cannot opt out of their regulatory duties simply by calling themselves something else and making a private arrangement,’ added Beatson. ‘The SRA’s rules and principles are designed to protect clients and the public and, in my judgment, cannot be side-stepped in this way.’
Beatson said the argument over the ombudsman’s jurisdiction was ‘totally misconceived’.
He rejected Ballard’s arguments the tribunal was guilty of serious procedural irregularities, and said the panel had acted correctly.
Ballard had submitted that the SDT sought to ‘bury’ regulatory and professional issues because it was ‘hostile’ to the type of innovative methods he was pioneering. This argument was also rejected.
Having established Ballard’s grounds of appeal were ‘utterly unarguable’, Beatson explained the tribunal had failed to take into account the different nature of his offences, and its decision to limit the fine to £2,500 was ‘clearly inappropriate’.