A solicitor has been fined £2,500 for failing to comply with the Legal Ombudsman after the Solicitors Disciplinary Tribunal rejected his claim that he was acting for a client as a McKenzie friend rather than a qualified practitioner.
The tribunal found that Terrence Ballard breached a restriction placed on his practising certificate because of a firm's bankruptcy, failed to act in his client’s best interest and failed to pay monies due to the Legal Ombudsman.
The findings related to his conduct in a criminal case where he acted for a client, referred to by the tribunal as Mr DE, on a ‘private basis’ in 2013 for a fee of £750.
Ballard, who was prevented from acting as a sole practitioner or sole director of a recognised body, said he was acting for the client as an unregulated provider. At the time he was working for Kent firm CR Burton & Co, but said he could not act for the client from this firm.
Following a dispute over the payment of fees, Ballard withdrew from the case, alleging that his client had breached their deal by paying £250 late. DE claimed he had not agreed when the fee should be paid and described a text he received chasing the payment as ‘threatening’.
After DE complained to the Legal Ombudsman, Ballard was ordered to repay the £750 and to compensate his client £250 for the ‘distress and inconvenience’ of having to find alternative representation.
But Ballard refused to pay the fine, claiming that he was not acting in the capacity of a solicitor or a regulated person when he represented DE and therefore did not fall under the ombudsman’s jurisdiction.
He claimed that the ombudsman’s decision was ‘plain wrong and a misstatement of the current legal and regulatory position which totally disregards the fact that to practise as a solicitor one must act in this capacity’.
According to Ballard, he had informed DE that he could not act for him as a solicitor, and therefore could not guarantee that he would be granted rights of audience in court, as he would have to apply as a McKenzie friend or exempt person.
But DE contested this, noting that at a magistrates' hearing Ballard spoke on his behalf as a legal adviser and sat on the same row as counsel and solicitors. He did this without applying to the court in writing to ask permission to speak as an exempt person.
The tribunal sided with DE, ruling that the client either was not informed of or did not understand Ballard’s proposal to act in a capacity other than as a solicitor.
The tribunal said the correct reading of the Legal Services Act and the Solicitors Act suggested that a solicitor could not be described as an exempt person if granted permission by the court to appear as an advocate.
It found there could be ‘no doubt’ that Ballard acted as a solicitor in the magistrates' court. ‘There was no other capacity in which he could have acted unless the court ordered otherwise,’ it said.
The tribunal said: ‘The respondent failed to properly set out the terms and scope of his instructions and the risks the client ran of not being represented at trial.’
It said his conduct fell below the standards the public would expect of a solicitor, describing the manner in which Ballard terminated the retainer as ‘intemperate and unprofessional’. The tribunal also noted that DE had to spend a further £1,200 to pay for alternative representation.
It said that an appropriate fine to reflect the seriousness of the matter was £2,500. It also ordered Ballard to pay costs of £18,000.