The super-regulator seems to be practising what it preaches.
Did you know that I wrote the Legal Services Board’s response of a few days ago to the Judicial Executive Board’s consultation on the courts’ approach to McKenzie friends?
Yes, the LSB certainly practises what it preaches. It has nothing against McKenzie friends charging for their unregulated work in the courts. And so, in the spirit of allowing even non-members of the LSB to do LSB work, I was asked to advocate for the organisation in relation to its position on McKenzie friends.
Here are some tips about how to be a successful McKenzie friend for the LSB. More solicitors should diversify into this extremely well-paid work.
First, although the LSB has a duty to promote all eight of the regulatory objectives from the Legal Services Act 2007, I knew from its past actions that there are only a few of them which interest the organisation. In relation to the issue of McKenzie friends in the courts, I did my duty accordingly, and I wrote in the LSB’s response: ‘This issue is directly relevant to the regulatory objectives of protecting and promoting the interests of consumers and improving access to justice.’ Sounds good, doesn’t it? Sounds as if I am right there down with the kids.
I deliberately ignored the first regulatory objective of ‘protecting and promoting the public interest’ because, frankly, professional indemnity insurance protection for litigants, proper training for their representatives, and discipline for their representatives’ wrongdoing are boring – they are not innovative or what the kids are talking about, and I instinctively knew that the LSB would not want them mentioned.
Second, ignorance of developments abroad is a plus. Mentioning them in my response would have ruled out my being selected as the LSB’s advocate in the first place. As it happens, at the very time that the LSB response was published, I was co-chairing a session at the IBA Bar Leaders’ conference in Barcelona on ‘Regulating the unregulated’.
We heard from Finland, where the judges persuaded the government that unqualified representatives before the courts should be regulated, in the interest of the proper administration of justice (and they are now regulated by the Finnish Bar); from the US where unregulated providers of assistance to litigants are regulated in a number of ways; and from Canada, where the Law Society of Upper Canada regulates paralegals.
I laughed at how clever I had been in keeping my LSB response free of any comparative information, because that would have been useful - useful! - in promoting an informed debate about unqualified representatives in our own courts.
Finally, it is definitely not the LSB’s style to take the lead in proposing how the clients of McKenzie friends can be better protected, so as to offer equivalent protection to lawyers’ clients. I knew that the LSB would not want that. So, in answer to several questions, I criticised the Judicial Executive Board’s paper in preference to taking the lead in providing solutions.
Accordingly, when the board asked very reasonably whether there should be a code of conduct for McKenzie friends, I wrote in the submission: ‘We can see that a code of conduct could be of value but there is insufficient detail about the development, ownership, scope and enforcement of a code for us to support this proposal’, thus giving absolutely no detail about what the LSB would want from such a code. The LSB loved it! I answered other questions in the same way, even once pushing the responsibility for dealing with the question of McKenzie friends onto the Competition and Markets Authority.
I can see how the LSB’s outsourcing its work to non-members might grow, given the success of this exercise. I am the toast of the organisation. There is much crowing at how it has widened access to its own services, and its members and staff can’t stop dancing to Amy Winehouse records. As for the question of my fee, I am still waiting to hear from the LSB. I hope that it will stay true to its word.
Although it is against my pecuniary interests to ask such a question, I am curious to know how the lawyer members of the LSB allowed this to happen – that I as a non-member should be able to represent the board’s views in such a partial manner.