‘Culture change’ needed to embrace fee-charging McKenzie friends

Topics: Consumer issues, debt and bankruptcy,Costs, fees and funding,Legal aid and access to justice

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  • Elisabeth Davies

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'.

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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.'

Readers' comments (42)

  • Sorry, but what utter nonsense.

    I am routinely against a McKenzie friend who is a struck off non-legal professional. He is, to be completely frank, utterly useless and a complete nuisance - he loses, appeals, loses appeals and tries to re-litigate, Everyone rolls their eyes at him appearing including the court staff, judges and ushers.

    Yesterday another so called "McKenzie friend (an accountant) tried to represent his 'client' at an oral examination by suggesting "I am advising my client to say 'no comment'..... he also continued to talk across me, referring to me as 'sunshine' and the court official as 'love'.

    No - McKenzie friends are not useful, they are useless. Allow an unqualified non-legal into the room, and everyone gets irritated.

    I cannot imagine the horror of someone being represented by someone who doesn't know the ropes in a divorce. The difficulty with well meaning reports like these is that the people contributing to them most likely don't have to be against this type of litigant in court.

    Legitimizing McKenzie friends is yet another swipe at a centuries old profession, and, in my opinion not merely a worrying idea, but a reckless one.

    Why is it that the legal market believes there should be a race to the bottom?

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  • So, no qualification and no PII but they can charge for this. Precisely how are we to compete with this latest incursion? How much damage are meddling amateurs to cause before sense prevails? What is the point of my remaining qualified when I can hand my practising certificate in, get rid of my office/staff and all the other overheads including PII and escape all the regulations and earn £50-£100k pa - happy days, it's the future!!

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  • So to confirm;- untrained, unqualified, uninsured individuals with little experience of the Courts are a ‘legitimate feature of the modern legal market’. When is it in the Court's interests to allow the above to speak as a professional?

    I would be interested to know what standards of skill they are expected to apply at work and how one goes about filing a negligence claim against said friend. I also wonder what term will be used to describe these individuals in court, it certainly won't be my "learn'd" friend.

    This report clearly sets out how little the board and Elisabeth Davies knows about the profession!

    BC

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  • One of the commentators above is right, this is merely part of a wider narrative or plan to dumb down the whole English legal system.

    The Legal Services Act introduced the notion, that the practise of law is merely the delivery of a product or service, without the necessity of adherence to high professional standards.

    We are implored to "sell" a service for a profit, rather than act purely in the best interests of the client.

    It is logical therefore to say that the law so dumbed down can be practised by anybody.

    This rubbishing of a fundamental pillar of our democracy is viewed with some puzzlement by other jurisdictions such as the USA, who cannot understand how integrity and professionalism can be purged from our legal system.

    Magna Carta, so cherished by Common Law systems, enshrined the principles of citizens being entitled to due process of law without fear of the State. Grayling must understand next year when this great event is celebrated, that there will be a political price to pay for such rank hypocrisy

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  • And here is the report:

    http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2014%2004%2017%20MKF_Final.pdf

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  • If anyone suggested that unqualified and uninsured people should be able to operate as dentists or doctors, they would (rightly) be ridiculed.

    If people want to act as McKenzie Friends for free, that is fine. But charging for such services is not fine, unless you are subject to the same strictures as those who spent years obtaining their qualifications.

    Paragraph 4.28 of the report says this:

    "The key difference between McKenzie
    Friends and lawyers is that the former
    do not have automatic rights to conduct
    litigation or have rights of audience."

    Erm. no. The key difference between McKenzie Friends and lawyers is that McKenzie Friends are not lawyers.

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  • One problem is that McKenzie Friends portray themselves as a cheap alternative to a lawyer. This is not accurate at all. Ones that charge for their help are not a cheap alternative to a lawyer. They are an expensive alternative to a litigant in person doing they work themselves.

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  • Firstly, if they are charging for their services, stop giving these people the air of legitimacy by calling them "McKenzie Friends". They are not. They are simply unqualified people charging to give legal advice and representation (often in circumstances where it is a criminal offence to do so). You wouldn't call an unqualified electrician a "Sparky Friend". You'd call them a cowboy, and film their antics to be put on day time TV.

    An unqualified electrician is cheaper than a qualified one. But would you really seriously expect an official government quango to say "oh well if some people can't afford elecricians, they should use unqualified ones instead"?

    I, as with Paul Nichols have been against one of these outfits.

    We start a claim for unpaid debt of £300,000. Unqualified rep issues application notice to the Salford Bulk Centre seeking the claim to be transferred to Kingston Upon Thames. (even though this happen automatically). When it gets transferred to the "Preferred Court" (which is the consequence of making an application), which was not Kingston, he issues another application seeking to rescind the administrative order transferring it to the preferred court on the grounds that it was made without a hearing.

    It gets transferred to Kingston. I kick up a fuss at all the pissing about and costs I (and my clients) have wasted, all to enrich an unqualified cowboy. The DJ tells me to basically get over it.

    He then issues an application for security for costs, on the basis that a letter I had sent had a typo when referring to the Claimant's address, which meant that the claimant's address must have been mis-stated on the claim form. He then finds out my client has a property in Bulgaria, and uses this as a ground for seeking security.

    He then issues an application to strike out the witness statement filed by the Claimant in response to his application for security for costs on the grounds that it referred to correspondence, and one of those items of correspondence had reference to an email, and that email was marked without prejudice save as to costs.

    Each application seeks payment of "costs" measure in five figure sums (despite the fact that "costs" payable to a McKenzie friend are not recoverable in law either inter partes or from their own client).

    We then, having spent literally thousands of pounds in fighting all this nonsense, win.

    Each defendant then goes bankrupt. (Not a problem for us in this case, as we can go after somebody else for the money now we have established liability).

    I have no doubt that this sort of nonsence is repeated up and down the country. But for some reason, DJs seem to take this "oh well poor Mr Blogs can't afford a proper lawyer, so we'll let him use his little McKenzie" line.

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  • The LSCPs proposals are, in fact, not that different from where we are now, so apocalypse now it is probably not, though I agree it raises some thorny difficulties.

    Can I encourage those of you with specific examples of struck off Sols or barristers practising as MFs that you let the LSCP have the details. They sought examples and got not one. It's the sort of evidence that might help the debate.

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  • Yes but let's be honest, the standard of DDJs and DJs across the board is now appalling. The result of those doing family, legal aid and PI etc, finding themselves without work so deciding to be one of the 1,500 chasing 100 DDJ appointments.

    I don't see many successful chancery or commercial litigation solicitors applying to become a DDJ or a DJ. In my area, all those who have applied to become or secured appointment as a DDJ or a DJ are the complete clowns who were useless in practice and always disorganised.

    Now they sit with comfortable salaries and pensions schemes, in judgment of those that were/are successful in private practice, often with no idea of the law or procedure. I always now have my White Book open ready to walk a DDJ or DJ through the relevant rule.

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