It was curious this week to read a former director of the Solicitors Regulation Authority argue that regulation is so expensive that it would be wrong to impose it upon McKenzie friends.
If solicitors are still prohibitively expensive after five years with Crispin Passmore guiding matters at the SRA, perhaps it’s time for a little more introspection on his part.
The argument is that paid McKenzie friends must be allowed to run free because to shackle them would prevent poor litigants accessing their services.
Predictably, the piece comes with a dig at lawyers for resisting change and trying to regulate competitors. (Passmore’s argument seems to be that McKenzie friends are alternatives, not competitors, to lawyers, so it would hardly be worth the legal profession trying to destroy this industry anyway.) Those lawyers calling for change, more so than regulatory policy wonks, are the ones who’ve seen for themselves the harm that rogue McKenzie friends have done.
The idea that affordable legal services are so sparse that poor litigants must be thrown at the mercy of unqualified and unregulated individuals is perverse. It is precisely because poor litigants tend to be the most vulnerable that they need protection from those that may exploit their situation.
Passmore points to Citizens Advice bureaux and law centres that might face extra burdens on their precious resources. But the creation of a register of unregulated advisers, together with greater transparency and redress for clients, is hardly an onerous challenge for legitimate enterprises.
Passmore says calls for restrictions on this sector address a ‘rare problem’. Well, 99.94% of solicitors in 2017 were not struck off or suspended – should solicitors be unregulated because the rogue ones are so rare?
We have no way of knowing who is acting as a paid McKenzie friend and what they are advising. We know one has advised a couple to act in defiance of a care order, we know that a vexatious litigant had to be banned from acting as a McKenzie friend, and we know a paid adviser has been jailed in the past for perverting the course of justice in a family court.
There is nothing stopping a struck-off solicitor advising someone in court tomorrow - and there is no way of litigants knowing their past. Passmore says a clampdown on McKenzie friends would be ‘disastrous’ for the poor. Throwing them to the unqualified wolves is not a better option.