Ballard v Solicitors' Regulation Authority (Rev 1)

A solicitor on the roll remains subject to professional and regulatory duties and cannot avoid them by describing a private arrangement as an unregulated service. A solicitor who appears in court, accepts instructions directly and participates on a client’s behalf may be acting as a sole practitioner, even without an employing or recognised entity. A solicitor must clearly explain any limits on the work and representation that can be provided. A court order must be obeyed unless and until it is set aside or successfully challenged. A disciplinary fine may be clearly inappropriate where the tribunal fails to distinguish materially different breaches when assessing the overall sanction.

Two appeals under section 49(1) of the Solicitors Act 1974 arose from disciplinary proceedings against a solicitor whose practising certificate prohibited him from being a sole practitioner or sole director of a recognised body. The Solicitors Disciplinary Tribunal found breaches concerning his conduct while assisting a client in criminal proceedings and his failure to comply with directions of the Legal Ombudsman and an order of the County Court at Eastbourne. It imposed a fine of £2,500 and costs of £18,000.

The solicitor appealed against the findings and penalty. The Solicitors Regulation Authority cross-appealed against the penalty. The central issues were whether the solicitor had acted as a sole practitioner, whether the Ombudsman had jurisdiction, whether the tribunal’s decision was procedurally or factually defective, and whether the fine was clearly inappropriate.

1. Substantive appeal dismissed; cross-appeal allowed. The tribunal’s findings were upheld. The fine of £2,500 was quashed and a fine of £6,000 substituted.
2. A solicitor on the roll cannot opt out of the mandatory Principles in the SRA Code of Conduct 2011 by adopting another description or making a private arrangement. Section 1A of the Solicitors Act 1974 applies only where a person would not otherwise be taken to be acting as a solicitor.
3. Whether the solicitor was acting as a solicitor depended on the capacity in which he was held out and understood to be acting. His attendance and participation at the hearing amounted to exercising a right of audience. Because he accepted payment directly and was not instructed by a regulated entity, the tribunal was entitled to find that he acted as a sole practitioner in breach of his practising-certificate condition.
4. A solicitor providing legal services must explain clearly, and where appropriate in writing, the terms and limits of the proposed representation. The tribunal was entitled to find that the unclear arrangement and the intemperate termination of the retainer breached Principles 4 and 5.
5. Under section 128(1) of the Legal Services Act 2007, the Ombudsman had jurisdiction because the solicitor was an authorised person in relation to a reserved legal activity. The closure of his former practice was irrelevant. Section 132 and R (Kerman & Co LLP) v Legal Ombudsman concerned continuity after a change in status and did not govern this case.
6. A person may in principle raise lack of jurisdiction collaterally. However, once the County Court made its order, the solicitor had to comply with it or challenge it by appeal or judicial review. A court order, even one allegedly made without jurisdiction, remains valid and enforceable until set aside.
7. The tribunal gave adequate reasons, made no serious procedural irregularity, and its factual findings were not perverse. The apparent-bias test was whether a fair-minded and informed observer would conclude that there was a real possibility of bias.
8. The court should respect the specialist tribunal’s expertise and should not substitute its own assessment merely because another sanction might have been imposed. However, the tribunal failed to distinguish the different nature of the practising-certificate and client-service breaches from the later non-compliance with the Ombudsman and county-court orders. The fine was therefore clearly inappropriate, and £6,000 was substituted.

1. High Court (Administrative Court): The solicitor’s appeal against the Solicitors Disciplinary Tribunal’s findings and penalty was dismissed. The SRA’s cross-appeal was allowed, the £2,500 fine was quashed, and a fine of £6,000 was substituted.
2. Solicitors Disciplinary Tribunal: Three of four allegations were proved, in whole or in part. The tribunal imposed a £2,500 fine and ordered payment of £18,000 costs.