No to a ban on fee charging McKenzie Friends
|Ben McKenzie & friend (no relation to the pseudo-lawyers)|
I appear to be in a state of perpetual shock and disbelief this week and the Legal Services Board have done nothing to help me out of that state.
Yesterday morning they responded to the Judicial Executive Board’s consultation on the approach courts should take to McKenzie Friends.
What is a McKenzie Friend? I can do no better than the definition given by RobinSpon-Smith of 1 Hare Court so I shan’t try:
“A McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, helping to organise the documents, and quietly making suggestions – for example as to questions to put to a witness. Although usually a non-lawyer, the McKenzie friend should not be thought of as a species of lay advocate and has no right to address the court.”
Originally, a McKenzie Friend was literally a friend of a litigant in person who could assist him in court. Or, it might be somebody offering support on behalf of a charity. McKenzie Friends were never intended to become a way for profit to be made.
It's important to note that McKenzie Friends need no qualification, are not regulated and have no indemnity insurance should they make a mistake. There is no system that exists to ensure that a person acting as a paid McKenzie Friend understands the law to begin with much less keeps up to date with changes in law and procedure.
This is a problem because you as a consumer have absolutely no idea whether the person you hand over your money to has any idea what is going on or is actually able to give you the necessary guidance. I recall seeing a McKenzie Friend attempt to appear before Thames Magistrates’ Court in a criminal law case. It was immediately obvious that he was not a qualified lawyer despite his attempt to exercise rights of audience he did not possess. The District Judge quickly noticed the significant errors he made from the start and booted him out of court. He made a comment as he went that was telling – he told the DJ that “I appear in courts every day, nobody else has a problem with me speaking on behalf of my clients”.
Some years ago I came across a group of solicitors who had decided not to renew their practising certificates and operate as a firm of “law advisers” to people facing all sorts of legal problems. I asked why they would do that? The director told me that it was to cut overheads because as lay advisers they did not require insurance or the costs of being regulated. Nor could anybody step in and fine them (or even take over their business) if they made mistakes.
TheLSB takes the view that there is no need to do anything about paid McKenzieFriends. They point to the “significant change” that the justice system is going through – while they don’t say it I’d suggest that the most relevant significant change is the removal of legal aid from pretty much all civil law cases and its restriction in criminal law cases. They go on to talk about a survey that showed “… 64% of consumers with a legal problem do not seek independent assistance in dealing with it. In this context, any moves to restrict consumers’ choice should be targeted and based on evidence of detriment.”
For me the idea that people may be going to a completely untrained, unqualified, unregulated and uninsured person for legal advice with their problems is evidence enough of a high risk of detriment that may be caused. Let’s not forget that McKenzie v McKenzie (the case that gives us the name of McKenzie Friends) was a family law case as are many cases now where McKenzie Friends give assistance. Their clients are often fathers desperate to gain access to their children – the sort of desperate people who need proper, professional legal advice from a solicitor who is qualified, regulated and insured against errors.
As the LSB alludes, most of the McKenzie Friends firms on the internet advertise themselves as a direct alternative to solicitors. They point out that their fees are significantly lower than those charged by a solicitor but they make no mention of the limitations of their services or their lack of qualifications to be giving legal advice in the first place. If you look at the comments on this Gazette story you'll see a McKenzie Friend claiming that having no knowledge of family law is no barrier to practising it. To me it reads as somebody having insufficient knowledge to recognise his own limitations - somebody else points out a few of his misunderstandings in following comments (wasn't me).
Ask yourself this – when the government goes to court do you ever see the Secretary of State rocking up with a McKenzie Friend to help out? Of course you don’t. When did you last see a major business send along a director and an unqualified McKenzie Friend to deal with a case? The celebs who seek privacy injunctions never turn up by themselves with an unqualified adviser to steer them through court do they? And why do you think that might be? It’s not because McKenzie Friends offer a cost effective solution and all these people are too daft to see what a good deal it is – it’s because they want quality legal advice from a source they know they can trust, in other words a solicitor and/or a barrister.
McKenzie Friends have their place. Where somebody is genuinely assisting a friend or where a charity is providing support they can be invaluable. But when somebody is conducting a business you have to ask yourself why have they not managed to qualify as a solicitor if they have sufficient legal skills to resolve this problem? If they don’t have those skills, then why would I want to pay this person to advise me in court?
The reason McKenzie Friends are so popular is because solicitors cost too much money and, frankly most of them are hopeless at estimating costs (in my experience at least). The profession must start charging fixed fees – it’s not hard, I’ve been doing it for years and all it needs is a little thought to get your fees correct. Once people see that they can get a proper solicitor for a reasonable fee then paid McKenzie Friends will disappear.