McKenzie friends bring into focus many of the dilemmas currently facing the justice system. One is the access, cost, quality trilemma. The State is retreating from publicly funded legal services as far as Article 6 will allow it, possibly further. The gaps need to be filled. This might be done by the courts themselves (the LCJ is but the latest judge to float a more inquisitorial approach already being developed ad hoc in many judges’ courts); by technology (say like the Dutch Rechtwijzer* which automates and manages much of the process of divorce); and by cheaper, unbundled assistance for litigants (be that from direct access barristers, solicitors looking to unbundle work, or services provided other than by ‘approved persons’ regulated by the Legal Services Act). The Legal Services Board in particular, has emphasised that they see competition driving innovation and a reduction in prices and that this reduction in price will ameliorate access to justice problems. There is not much sign of that yet and a known unknown is how far price can be cut whilst still providing meaningful access. McKenzie friends that charge for their services might be expected to be somewhat cheaper than lawyers, but how much cheaper and how valuable is the service that they provide?
The second dilemma is how to restrict and regulate legal services. This is done principally through only allowing approved person to provide reserved legal services: for the purposes of this blog, the key reserved services are the conduct of litigation and advocacy before courts. McKenzie Friends remind us how narrow those two reservations may be. Judges when faced with a litigant in person who seeks permission to have a McKenzie Friend advise them during a hearing must have good reason for saying no if they litigant is to be forced to represent themselves alone. And from there it is a relatively small step for a judge to grant permission for representation by a McKenzie friend – usually without any legal qualifications, but with some experience of the courts- who may be likely to do a better job of it than the litigant themselves. It is though a small step which crosses the boundary between a non-reserved services (advice) and a reserved service (advocacy): the immediate exigencies of the situation erode one of the key limbs of legal services regulation. An in situ judgment that access to justice permits unqualified representation trumps the consumer and public interest risks inherent in allowing unqualified representation.
Of course a key point is that the risks may be inherent but how big are they? This is a concern the Legal Services Consumer Panel have sought to examine in their report on Fee Charging McKenzie Friends. This they have done through:
- Reviewing McKenzie Friend service websites
- Interviewing 28 McKenzie Friends, and
- discussions with stakeholders including it seems some judges and lawyers at a roundtable event and through bi-lateral discussions.
They are thus not concerned with family members or friends or volunteer McKenzie Friends attached to an institution/charity. These fee-charging McKenzie Friends sometimes offered a conventional limited service but others had graduated onto “a wider range of services including general legal advice and speaking on behalf of clients in court”. This later group seeks to emulate more closely the services that can be provided by solicitors firms and barristers (legal research; legal advice; case management; drafting documents; completing forms; quite commonly seeking a right of audience) .
We are told most are sole traders and few have legal qualifications. Interestingly they did not find examples of McKenzie friends being stuck off lawyers, although this may be partly contingent on the ways in which they engaged McKenzie friends and other stakeholders. It is clear that some fee-charging McKenzie friends may come with experience (and some with baggage) from previous experiences in the courts. Some operate on a) part-time basis. It is those operating full-time that have begun to emulate lawyers. The full time McKenzie Friends the Panel spoke to often claimed to help more than 50 litigants a year; usually had a turnover of less than £50,000 but some much more (£100k plus). Most specialised in family law, but some did employment tribunals, consumer disputes and housing cases).
Fees Hourly rates were said to be typically in the range of £35-60 per hour (or £150-200 per day). Some other charging models are said to exist (one wonders whether this might include contingency fees). The majority are not insured though we can assume some have tried to get insurance as some reported difficulty in sourcing insurance.
The report makes a number of points about how McKenzie friends appear to be operating in the courts relevant to the benefits and drawbacks they post. Most of these points seem to have come predominantly from the McKenzie friend interviews, although they were presumably supported or not contradicted by the other stakeholders. So whilst most clients were said to be, “male fathers on lower incomes” (and thus McKenzie Friends are seen as plugging an access gap) some clients are seen as preferring McKenzie friends over lawyers leading us into the more contentious territory of permitting competition on an unlevel playing field. There is also the claim that:
judges and lawyers, as they see that cases tend to progress more smoothly when McKenzie Friends can assist the court by encouraging litigants to separate emotion from the facts, facilitate cooperation with court processes and other parties, help with case papers and so on
This fits with my broad understanding having researched litigants in person and come across McKenzie Friends from time to time in that context, but it would be useful to know how broad the justification is for that. A second claim I am a little more suspicious of:
rights of audience are meant to be granted to fee-charging McKenzie Friends only in exceptional circumstances, but some McKenzie Friends told us this is the rule rather than the exception.
Of course it is in the interests of McKenzie friends to portray growing judicial acceptance of their role. It would be interesting to know how the other stakeholders the Panel spoke to felt about this point. I suspect the judicial approach to granting rights of audience is both more varied and more resistant than this quote indicates– but this is more an intuition based on my own research rather than recent experience – the aftermath of LASPO may have moved the judiciary more clearly towards the position of any port in a storm.
What then of the risks posed by McKenzie friends? The Panel’s report points out that, “Many of the risks consumers face when using a fee-charging McKenzie Friend are also present with lawyers.” I agree. Research has shown time and time again that qualified lawyers, particularly when doing low value, low status work, do not perform at the levels of professionalism that they profess. Yet it is also likely to be the case that there may be (as the Panel notes), “particular risks associated with fee-charging McKenzie Friends.” They risk:
- being agenda-driven (which may be one reason why the McKenzie friends tended to emphasise that their clients were male – fathers groups are active in the area and pose particular risks if representing women). It is also worth noting that, When the Panel asked McKenzie Friends, “what worries them about some other McKenzie Friends, the most common answer was those “with an axe to grind‟ who “exploit vulnerable clients as puppets to pursue a personal agenda.”);
- providing poor quality advice (though lack of training, experience and support – though experienced MFs may provide good quality);
- not understanding the limitations of the McKenzie Friend role (straying into conducting litigation seems a particular risk);
- escalating fees (as we have seen they often charged on an hourly basis);
- breaches of privacy (being less careful with their client’s information); and
- struck-off lawyers acting as McKenzie Friends (of which they said, “although rumours persist, we found no hard evidence of this is happening in practice”)
Their assessment is that, “we consider that regulation would be a disproportionate response to the risks given the lack of evidence of consumer detriment and the discretion and tools available to judges.” This has prompted a bit of throwing up of hand in horror in places like the Law Society Gazette (where, to be fair, throwing up of hands in horror is the default mode). It is worth dwelling on this assessment for a moment. It should be remembered that McKenzie Friends are not a new phenomenon. Also, the Lord Chancellor declined to extend reserved legal services to will writing recently. The appetite for regulation in the MoJ may thus be assumed to be weak and McKenzie Friends represent one potential amelioration of government legal aid cuts. Against that background the Panel has limited opportunity to influence how McKenzie Friends are dealt with.
The main source of power here is, and remains, the judiciary. They have it in their own hands to inhibit McKenzie Friends if they choose. McKenzie Friends may grow in significance but so may their competition: e.g. barristers offering direct access might squeeze out the higher charging providers. Indeed, one thing that might be contemplated is that judges scrutinise the charging rates for McKenzie friends more closely as part of the permission process so that clients can be alerted to charges which would bring them within the ball-park of regulated legal service providers.
More controversial, perhaps, are suggestions that would give greater legitimacy to McKenzie Friends. The Panel suggests, “Fee-charging McKenzie Friends have responsibilities to demonstrate they merit this recognition, through effective self-regulation,” and that a self-regulating trade organisation might be formed. To the extent that such a trade association might develop some rules for, and shared experience between, McKenzie friends this may be beneficial. Without better evidence on the actual quality of, or problems with, McKenzie friends or a sense of what a McKenzie Friend Association might look like it is difficult to engage with the idea more thoroughly but it is difficult to see a very significant impact coming from such an initiative.
Similarly, they recommend:
a more permissive regime via some limited changes to the Practice Guidance issued by the senior judiciary, from which the courts take their steer. The Practice Guidance reflects the law as it stands so the scope to change this is limited. However, this document could benefit from a more positive tone and treat fee-charging and volunteer McKenzie Friends more equally …
Ideally, judges should have a wide discretion to grant a right of audience …
In our view, the risks in advocacy are such that regulatory protections are needed before rights of audience are granted automatically
The Panel’s caution here is wise. They know they have a limited evidence base against which to gauge the risks posed by McKenzie Friends; and that their stakeholders have suggested that (paid) McKenzie Friends alleviate access to justice more than they pose consumer (or public interest) risks, but are not without reservation. There is a bit of a risk that courts see McKenzie friends as smoothing their administrative processes and do not seek to fully appreciate whether they pose risks to the client or the public interest, but I would not wish to overstate it.
Ultimately it is the court’s attitude to permission which will determine how significant McKenzie Friends becomes. LASPO has likely increased the demand, and opportunity, for McKenzie Friends, but courts will decide whether they can advise and, most importantly, whether they can represent. The Panel suggest modest improvements in how the court functions:
Clearer guidance, better training support and more use of tools such as requiring a CV or completion of a form for McKenzie Friends to seek to appear in court, would give judges more confidence to use their discretion and do so consistently [and]…Judges should be robust in using powers available to them, such as Civil Restraint Orders, to tackle the few disruptive and poor McKenzie Friends.
Civil Restraint Orders are a bit of a sledgehammer to crack a nut. There is clearly the potential for a more coordinated and managed judiciary to respond more coherently to McKenzie Friends but do they have the appetite and resources to do so?
*Disclosure: I am on the advisory board of HiiL