Tuesday, 20 May 2014

Potential Risk to Consumers Grows as Use of Unregulated McKenzie Friends Increases - Full Post

In April 2014, the Legal Services Consumer Panel published a report about fee-charging McKenzie Friends. The use of McKenzie Friends is said to have greatly increased, particularly (but not exclusively) in the family courts. This is mainly attributed to the enormous increase in litigants in person as vast swathes of law are cut from the scope of legal aid.

Concerns have been raised regarding the growth of the McKenzie Friend industry. In their favour, that they are inexpensive, provide moral support to nervous litigants in person, and may smooth and speed up legal processes; however concerns have been expressed about their lack of training, supervision, regulation, and insurance. Rumours also persist – and there is some evidence to support this – of struck-off lawyers acting as McKenzie Friends.

Who are McKenzie Friends?

The LSCP report describes many McKenzie Friends as having become McKenzie Friends ‘following a personal negative experience of the court system’ such as a divorce or child custody case: ‘they decided to draw on this experience to help others in similar circumstances’.

Most McKenzie Friends are sole traders, though occasionally other business structures are seen, such as two or three McKenzie Friends working together, or working on a commission basis. The sample interviewed by the LSCP found about half of McKenzie Friends work part-time and half full-time.

Very few of the McKenzie Friends considered by the report had legal qualifications. Some had other professional qualifications such as mediation. A small number have professional indemnity insurance, but most do not. Some have attempted to get insurance but were unable.

Most McKenzie Friends provide help in family law cases only, with some specialising in only divorce or only child custody cases. However, ‘type 4’ McKenzie Friends (see description below) sometimes offer much wider legal services, including help with motoring offences, criminal cases, immigration cases, power of attorney and other private client work, and even judicial review.

Types of McKenzie Friends

The LSCP report divides McKenzie Friends into four ‘types’, as follows:

  1. The family member or friend who gives one-off assistance
  1. Volunteer McKenzie Friends attached to an institution/charity
  1. Fee-charging McKenzie Friends offering the conventional limited service understood by this role
  1. Fee-charging McKenzie Friends offering a wider range of services including general legal advice and speaking on behalf of clients in court


The report focused on types 3 and 4: fee-charging McKenzie Friends.

Advantages of McKenzie Friends

Speeding Up Court Processes

For many of these litigants in person, the choice is not between a McKenzie Friend and a solicitor, but between having a McKenzie Friend or going to court alone. Many commentators conclude that ‘something is better than nothing’, arguing it is better to have unqualified, but nonetheless perhaps experienced and useful McKenzie Friends, than to have unqualified and inexperienced litigants in person clogging up the family courts.

Cases involving litigants in person often take significantly longer than cases where both sides are legally represented. This may be for a variety of reasons, including  the possibility that litigants will continue to fight a meritless case because they do not have a lawyer to advise them that they will not succeed; or failure to supply the correct documentation and information, either at all or within the time required; and so on.

Mr Justice Holman summed up the difficulties for judges succinctly:

‘I have no legal representation… no expert evidence of any kind. I do not even have such basic materials as an orderly bundle of the relevant documents; a chronology; case summaries, and still less, any kind of skeleton argument. Instead, I have had to rummage through the admittedly slim court file… I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than “rough justice”.’

The LSCP report notes 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.’ While a McKenzie Friend is not and cannot act as a lawyer, if one can in fact help to defray the difficulties posed by litigants in person, they may be beneficial to the smooth running of the courts system.

Cost

According to the LSCP report, the typical hourly price range for McKenzie Friends is £35-£60, or a day rate of £150-£200. For many litigants in person who are ineligible for legal aid and unable to afford a qualified solicitor, a McKenzie Friend may offer a more reasonably-priced alternative. But are McKenzie Friends in fact an alternative to a solicitor? What kind of service do they offer? These questions are explored below. 

Moral Support

While all court processes can be intimidating and stressful for those involved, it can fairly be said that family court proceedings can be the most difficult. They deal with matters which are of utmost importance to the litigants, including divorce, financial support and child custody matters, all whilst in unfamiliar surroundings, using alien terminology and jargon, and operating in accordance with rules only comprehensible to those with significant experience. As such, McKenzie Friends may offer a valuable service simply in terms of providing explanations of process, moral support, and a familiar friendly face for litigants in person.

Risks of McKenzie Friends

Training and Supervision

There are no training requirements for McKenzie Friends. Many may have no training at all. Some McKenzie Friend organisations offer courses of varying lengths, from a two-day introductory course to a five-week, part-time training programme. The courses are not regulated or recognised by any professional body. There is no supervision or qualification requirement for McKenzie Friends.

By contrast, solicitors must train for a minimum of four years, including a two-year, heavily supervised training contract, before being allowed to independently give legal advice.

Insurance

Most McKenzie Friends do not have any insurance. A few have professional indemnity insurance, though the level varies widely from £50,000 to £2,000,000. Some report previously having had insurance but finding it difficult to renew following the changes to legal aid.

Most solicitors’ firms must have at least £3,000,000 in professional indemnity insurance, and many have considerably more.

What’s the point? If your solicitor makes a mistake which damages your claim, you know you can obtain financial redress. With a McKenzie Friend, you cannot be sure there will be enough insurance to cover your losses (if there is any insurance at all).

Regulation

There is no regulation of McKenzie Friends. While there have been calls for self-regulation, including in the report by the LSCP, there is currently no credible functioning regulation or self-regulation of McKenzie Friends; whether fee-charging or not.

This is quite unlike solicitors, who are rigorously regulated by the Solicitors’ Regulation Authority; which has significant powers to punish solicitors who breach the rules – including powers to fine, suspend and even revoke their licences to practice. Additionally, if a client has a complaint about a solicitor, she can obtain redress through the Legal Ombudsman. The Legal Ombudsman is an independent, impartial and (importantly) free service which helps consumers of legal services deal with tricky situations where they feel they have been wronged by the person they trusted to give them advice that would serve their best interests. 

The lack of regulation of McKenzie Friends clearly puts the client at risk. Though unscrupulous lawyers certainly exist, ‘the key difference [with McKenzie Friends] is the absence of the protections that regulation offers. This includes preventative measures such as qualifications and a code of conduct, as well as remedial measures such as insurance and access to redress.’

Quality of Advice

The LSCP report notes that ‘Litigants may rely heavily on what the McKenzie Friend suggests despite this person not being legally qualified and potentially uninsured. While some McKenzie Friend websites make it clear that the individuals are not lawyers, others make claims about their expertise. The maxim that “something is better than nothing” may not hold if litigants are badly advised’.

Litigants in person are typically in unfamiliar, stressful and complicated situations, and as such are highly vulnerable to potentially unscrupulous individuals who portray themselves as ‘experts’ capable of giving advice and assistance. When it becomes clear that these McKenzie Friends have no training, supervision, regulation, or insurance, the potential risks to the client become evident.

A litigant in person may be better off alone in court than with a McKenzie Friend giving poor guidance, such as the category of ‘Agenda-Driven McKenzie Friends’ mentioned in the report. These ‘exploit vulnerable clients as puppets to pursue a personal agenda’ and may ‘encourage clients to pursue meritless cases at a financial and emotional cost to clients, while also wasting court time.’

Struck-Off Lawyers?

The LSCP initially chose to write a report on McKenzie Friends in no small part due to rumours that lawyers who had been struck off the rolls were now offering their services as McKenzie Friends. Given that a lawyer must have been guilty of serious misconduct to be struck off, it can be argued that it is inappropriate for them to give legal advice to potentially vulnerable and emotional clients.

There is nothing to stop a struck-off lawyer from advertising themselves as a McKenzie Friend, and indeed they might be able to capitalise on their previous profession by mentioning their legal training and experience with the legal process.

Conclusion

In an ideal world, all litigants who wanted to be advised and represented by qualified lawyers would have that option. Unfortunately, the world we live in is anything but ideal, and litigants in person who are unable to afford a solicitor and are ineligible for legal aid are flooding the courts. Our courts remain inaccessible to most laypeople, with complex and ever-changing rules, procedures and requirements that take years to learn and understand. It is therefore hardly a surprise that a new industry is developing to fill this gap in the market and provide low-cost legal advisory services to those who require them.

With that said, there is strong evidence to suggest unscrupulous McKenzie Friends exist, from struck-off lawyers and those with an agenda to push, to those who suggest they can fight your case with more vigour than a solicitor could. With no regulation, training, oversight or guaranteed redress against wrongdoing, would it be right that the public should trust their legal affairs to McKenzie Friends?

By Catherine Brydges, Andrew Wainwright & Angela Giannotti

The views expressed do not necessarily reflect those of the firm or its partners. 

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