‘Culture change’ needed to embrace fee-charging McKenzie friends
Fee-charging McKenzie friends increase access to justice and make up a ‘legitimate feature of the modern legal market’, according to a report published today by watchdog the Legal Services Consumer Panel.
The president of the Law Society described the panel's findings as 'worrying'.
In its first review of the growing market, particularly in family cases, the consumer panel noted that McKenzie friends have been around for 50 years. Traditionally volunteers, they help litigants in person by providing moral support, taking notes, helping with case papers and giving advice.
However an increasing number now charge. While some provide free initial telephone advice, rates charged vary between £15 to £89 an hour. The panel found that those who worked full-time each helped on average 50-100 people last year and reported £100,000 or more in turnover. Such amounts were the exception, with most earning below £50,000 and some only helping a handful of clients.
The report showed that most had neither a legal qualification nor insurance.
The panel found some McKenzie friends are expanding their role by providing legal advice and seeking a right of audience, mirroring services offered by lawyers.
It concluded that the access to justice benefits outweigh the risks.
The watchdog ruled out statutory regulation, but called for a system of self-regulation by establishing a trade association and code of practice covering courtroom and commercial practices.
Among its 15 recommendations, the panel also called for a ‘culture shift’ to recognise fee-charging McKenzie friends as a ‘legitimate feature of the modern legal services market’.
‘They should be viewed as providing valuable support that improves access to justice in the large majority of cases,’ it said.
McKenzie friends should not be given automatic rights of audience, said the panel. Instead judicial guidance should be issued giving judges discretion to grant rights of audience where it would be in the interests of justice.
To tackle the ‘minority’ of bad McKenzie friends, the panel suggested the use of civil restraint orders and enforcement by trading standards.
Panel chair Elisabeth Davies (pictured) said a McKenzie friend is often the ‘real choice’ for those getting divorced, or fighting for access to their children, but who cannot afford a lawyer.
While there are legitimate concerns about the quality and behaviour of some individuals, she said, they can provide valuable support which improves access to justice and helps courts get through their caseloads.
‘Conservative attitudes’ mean McKenzie friends often encounter resistance in court and ‘barely get a mention in advice guides’, she added.
Law Society president Nicholas Fluck said: 'Solicitors offer advice and services tailored to clients’ needs and finances. Cutbacks in legal aid mean new and innovative thinking in securing access to justice is urgently needed, but it is worrying that the Consumer Panel is endorsing a system where individuals act for personal financial gain and do not need to be qualified, competent or free of previous convictions to appear in our courts.
'Such a scheme would provide poor service for poor people. There are no mechanisms to assess whether the fees would be reasonable. That is not the way to preserve a fair legal system in a world of continuing austerity and falling public spending.
‘It would be more helpful for the panel to look at removing excessive regulatory burdens and costs from hard-pressed qualified practitioners fulfilling a vocation as lawyers undertaking legal aided work.'