Some perspective on the McKenzie Friends Marketplace (Guest Post, Dr. Leanne Smith, Cardiff Uni)

This week Twitter has been alive with sharp criticism of University of Westminster undergraduate Fraser Matcham’s new McKenzie Friends Marketplace (https://mckenziemarketplace.co.uk). The concerns (to use a mild descriptor) highlighted are numerous and well outlined on blog posts by Giles Peaker (https://nearlylegal.co.uk/2017/03/bpp-fee-charging-mckenzie-friends-errors-judgment/) and Lucy Reed (http://www.pinktape.co.uk/rants/a-little-knowledge-is-a-dangerous-thing/#comments). The criticisms highlight important issues but I don’t need to rehearse them here.

As a teacher of law students, I would like to sound a strong note of disapproval in response to the MFM’s encouragement to law undergraduates to become fee-charging McKenzie Friends. I suspect that most involved in delivering clinical legal education for undergraduates (I am not one of them, though colleagues at Cardiff oversee a range outstanding opportunities for our students) would acknowledge the reality that students who work with real clients on pro bono schemes require intensive supervision and, often, direct assistance to ensure the work is of an acceptable standard. I doubt even the strongest undergraduate could offer something sufficiently valuable to a litigant to justify charging for her support (mature students might be an exception here, depending on their prior experience). In any event, I will be advising my own students to boost their student bank account balances with more mundane part-time employment and to obtain their legal experience in well-supervised placements and pro bono schemes. I will go further, recommending that they give this and any similar initiative a very wide berth.

There is in any event an oddity in the MFM’s facility for registration of ‘student traders’ to register and provide services at a lower rate than ‘business traders’. There is nothing whatsoever to prevent students from acting as fee-charging McKenzie Friends and, given that the discount on commission that the MFM offers to students is unlikely to offset the reduction in fees that the site permits them to charge, as compared with the ‘business’ members, I see no reason whatsoever why students inclined to explore this line of work would avail themselves of the student trader option. Enough on the negatives though, because the real purpose of this post is to attempt to insert some nuance into and soften some of the sharper edges of discussion of the MFM.

I have two motivations for contributing to the debate. First, and principally, I am currently leading an independent research project (funded by the Bar Council) exploring the work of fee-charging McKenzie Friends in private family cases. In the coming weeks I and the research team, which includes Dr Emma Hitchings (Bristol University) and researcher Mark Sefton, expect to share the final report on that research.  In the meantime, as someone who has spent much time recently reflecting on the range of issues presented by fee-charging McKenzie Friends, I’d like to pick out some elements of the MFM initiative that merit consideration but have not yet featured in discussion.

To begin, I will raise a few hackles with a disclosure: I do not see that the emergence of a body of non-lawyers as advice givers is self-evidently a bad thing. That is not to say that fee-charging McKenzie Friends operating within (or rather outside of) the context of our current regulatory frameworks pose no concerns or problems; clearly they do. But there is plenty of research indicating that non-lawyers, particularly specialist non-lawyers, can provide competent legal advice and support within considered frameworks that involve training and supervision. Does the MFM provide such a considered framework? Absolutely not, in its current form. But does that mean it should be rubbished entirely? On this question I am more circumspect.

Let’s take the indication that the MFM will in October ‘provide a training programme with the assistance of one of its supporting universities’ (since the University of Westminster has not actually indicated unequivocal support for this initiative, I assume BPP, whose logo appears on the MFM website, is the supporting university alluded to). It is not at all clear what form the ‘training’ will take, and BPP has not exactly covered itself in glory in publicly allying itself with an initiative that has undoubtedly been launched prematurely (see Lucy Reed’s list of formal and presentational steps that ought first to have been addressed). I am, however, at least willing to entertain the idea that useful training could be provided by an institution with genuine expertise in law and delivering legal education, and that such training could be the first step in establishing the sort of framework that underpins successful non-lawyer supporters elsewhere. Bespoke McKenzie Friend training courses exist already, as advertised on the websites of a couple of experienced fee-charging McKenzie Friends, most notably this one: http://www.mckenziefriendtraining.co.uk/index.php. So Fraser Matcham is not a pioneer in proposing this but, if the training is going to be designed and delivered by a higher education institution, he might have hit on a way to raise the standard a few notches and thereby increase the potential plausibility and utility of the course(s).

Moving on, I note that the MFM website includes a nod to the recent recommendation of the Competition and Market Authority that ‘aggregate online reviews’ might be used to boost transparency and service quality in relation to unregulated legal services (see chapter 7, CMA, Legal Services Market Study: final report, December 2016). The MFM says it will present a reviewing system that enables clients of fee-charging McKenzie Friends to leave a star based review of their McKenzie Friend to help inform the decisions of others (information, though notably not the review facility itself, buried in this page: https://mckenziemarketplace.co.uk/guideforsellers).

That’s not going to be a fix-all in terms of rooting out bad fee-charging McKenzie Friends,  and it is notable that the CMA stressed the need for a ratings system to be ‘implemented thoughtfully’ – preferably with advice from regulators, but the MFM proposal is a start at least. Further, it shows some effort to engage with those (few) recommendations that have been made with a view to increasing the likelihood that litigants seeking the services of a fee-charging McKenzie will make positive and informed choices. The other recommendation that appears to be reflected in this initiative is the Legal Services Consumer Panel’s 2014 suggestion that fee-charging McKF’s should self-regulate. That, I suspect, is what underpins the presentation of a (very rudimentary and rather untidy) code of conduct and complaints procedure and perhaps also the planned training.

Fraser Matcham has taken much flak for his claim that the MFM will function as a ‘quasi regulator’. I don’t necessarily disagree with the anxieties about the potential for that claim to provide a cloak of respectability for services that are not regulated in any really meaningful sense. That said, it is hardly Fraser’s fault that self-regulation is thus far the only option available to fee-charging McKenzies who might welcome the development and imposition of objective standards and oversight. Worth noting here, is the prior existence of a self-regulatory body for fee-charging McKenzie Friends, i.e the Society of Professional McKenzie Friends (http://www.mckenziefriends.directory). The SPMF describes itself as ‘a self-regulatory body’. The language is slightly different but, to my mind, the terms ‘self-regulator’ and ‘quasi-regulator’ amount to much the same thing. Their value, of course is open to debate (here’s an essay title for somebody: ‘The terms self-regulator, quasi-regulator, and unregulated are distinctions without a difference. Discuss’). The point I want to make though is that, if when it was launched the SPMF’s efforts met with the same public opprobrium as the MFM did this week, I missed the furore. It’s possible that the apparent affiliation of two reputable Higher Education institutions with the MFM increased levels of surprise and concern so as to make this initiative more noteworthy. But those affiliations are precisely what could make the MFM – amateur though its website, materials and underpinning goals do indeed look at this stage – hold more promise than the SPMF. It would be a pity if the premature launch of the initiative overshadowed that.

Of course, viewed from another angle, all the questions about the value (or lack thereof) of attempts to construct pseudo regulatory structures for unregulated legal services point to the fundamental inadequacy of the underlying regulatory framework. It would be great to see as much criticism targeted at that as has been levied at this 19 year old student. Which brings me to the my second motivation for writing this blog. Like most academics, I teach as well as research. Consequently, I confess to harbouring pastoral instincts in relation to 19 year old undergraduate students and their work, instincts that have kicked in and incited sympathy and concern for Fraser Matcham, who has been publicly and mercilessly subjected to the ire of so many this week.

So, notwithstanding that I share many of the concerns about the MFM that have been raised  this week, I’ve tried to highlight the some seeds of merit that had hitherto been ignored. In closing, I have a few words for Fraser Matcham himself…

This week, Fraser, you’ve had a particularly brutal exposure to the fact that the wider world is altogether less forgiving and less interested in constructive feedback than educational institutions are. Of course, you decided to play in that wider world of your own volition, and if you intend to continue doing so you must accept that this is the level of scrutiny and criticism to which you will (rightly) be subjected.

For now though, let me say that if the MFM was just an undergraduate project it wouldn’t be bad at all. In fact it would be pretty great. You’ve taken steps to research an issue that is unlikely to have featured on your core courses, and you achieved a good level of knowledge for a second year undergraduate. It looks like you also took steps to consult more appropriate individuals/institutions to fill gaps in your own knowledge (albeit that it’s unclear whether you were given entirely adequate counsel), and that can only be a positive thing. You’ve shown initiative, tenacity and conscientiousness in realising this idea and, if those qualities are applied to your academic studies, I expect you will do very well. I admire your gumption in taking hold of an issue so contentious as fee-charging McKenzie Friends. Finally, although your Twitter offer to have a publicly streamed discussion on Facebook about the concerns of some of your critics was not apparently taken up, I note that you made it. It was probably a bit impractical, and might have been interpreted as an attempt to avoid rather than engage with criticism but it suggested a leaning towards candour that, in my view, bodes well for you.

It seems to me that you’ve got a lot going for you but now you need to add evident self-reflective capacities to your skill set. My own feeling is that you’d be better off dropping this hot-potato, particularly if you are serious about wanting to become a real lawyer. Pop it on the CV of failures, own it and return to entrepreneurialism when you have more knowledge and experience and a bit more capacity to judge and navigate sensitive issues with a bit more sophistication. Pay attention to detail in your future work; there is a chance (just a chance) you might have had a slightly easier ride in relation to all this if your website had been more polished (you really do need to work on your grammar). If you want to attract more respect in future endeavours, don’t over-estimate your abilities, never oversell your credentials and know that a little humility can carry you a long way.

But do keep up the energy and the creative ideas. I wish you the best of luck and I hope I’ll see your name pop up in connection with something equally new but more positive in a few years time.

_______

This is a guest post from Dr. Leanne Smith, Senior Lecturer in Law, Cardiff University. She is on twitter @leanneslaw [Disclosure: Leanne and I are married – isn’t she lucky?*]

*N.B. Yes, there is a question mark.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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4 Responses to Some perspective on the McKenzie Friends Marketplace (Guest Post, Dr. Leanne Smith, Cardiff Uni)

  1. Allan murray-jones says:

    great email. When I took British nationality I decided to claim to be Welsh, as I had a Welsh grandfather. More of a device not to fail the Tebbitt test really but I just so love my trips to Cardiff to watch the rugby and can nearly sing the national anthem. And when I go to the Wales v Australia games I am very good at just enjoying the game.

    I could not agree more with the guest post. One issue is that the Government having destroyed the legal aid system (and I saw a lot of abuse of it but just feel they went too far), what do we as professionals do? One of the issues which is exercising some of my legal friends is that if they help litigants in person, what liabilities do they take on? This is a real issue as some of the judges would like to see more help, partly to keep their courts working. I am all for McKenzie friends who expect to be paid being liable (and I wonder if the Westminster people have thought about this). But practising lawyers who might be prepared to do things pro bono tend to be obsessional about risk, for not obviously wrong reasons (i.e., not sure that I agree but get the concern).

    Keep up the great work. I was missing your emails.

    Allan

    >

  2. McKenzie friends should act unpaid but have expenses incurred refunded.Only those genuinely concerned for the parents and children would then undertake the work.
    On the other hand I do believe that parents should be able to nominate any person they like to conduct their case whether legally knowledgeable or not. Anything and anyone would be better than that reprehensible cluster of solicitors and barristers who agree every interim care order,final care order,adoption placement, adoption order or contact order that the local authority demand ; This,despite protests from parents whom they gag but who want to speak themselves and fight every step of the way for their children. Who needs barristers or solicitors to raise the white flag crying “go along with social services”and who then give in to all the social worker’s demands? No legal knowledge is needed to abjectly surrender…………….

  3. Pingback: Family Court Reporting Watch: Weekly Round Up | The Transparency Project

  4. Pingback: Transparency Project: Family Court Reporting Watch – Weekly Round-Up No. 20 | Inforrm's Blog

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