The use of these friends is being encouraged by those who ought to know better. Have the regulators gone mad?
The Legal Services Consumer Panel concluded that fee-charging McKenzie friends increase access to justice and are a ‘legitimate feature of the modern legal market’.
A McKenzie friend is a sort of ‘lawyer’ but with subtle differences from the established understanding of what a lawyer should be. A McKenzie friend does not need to have a professional qualification, a law degree – indeed any degree – nor, come to think of it, does he necessarily have to possess any academic qualifications. He ought to be able to read and write, and to speak coherently because, after all, he is being engaged to assist a litigant to present his case in court.
But there is no requirement to demonstrate any proficiency in the three Rs, or to attend any training courses. In fact, all he has to do is buy a sign that says ‘advocate’, or some such, and attach it to his door. He does not have the right to address the court. But if he performs as a ventriloquist with his client as the puppet, sooner or later the court will get fed up and allow him to address the court directly.
So what? Does any of this mean that he is any less proficient in court than a solicitor who has studied law for four years and undertaken a training contract for a further two years? Let the market decide.
Of course, a McKenzie friend need not have any money or other assets and is not obliged to take out indemnity insurance (it would be a stretch to call it ‘professional’ indemnity insurance) in case things go wrong. So, in the event of a disaster, the client has no redress.
So what? At least the client has access to a ‘lawyer’, which means he has access to justice – sort of.
Have the regulators gone mad? What next? A bunch of unqualified quasi ‘doctors’?
Access to the courts should be regulated to safeguard the interests of the public. In other words, the protection of the client is paramount. It is a scandal that any old Tom, Dick or Harry is to be permitted to ‘practise’ whatever art he might possess on unsuspecting members of the public, charge for his dubious services, and then be able to walk away from the wreckage when it all goes badly wrong.
Surely there is a better way.
Recently, there has been a lot of fuss about the quality of advocacy, leading the legal regulators (on the basis of dubious evidence of need) to introduce an excessively complicated, ridiculously expensive and utterly unnecessary scheme to regulate the right of qualified lawyers to appear in courts. This scheme is called the Quality Assurance Scheme for Advocates (QASA).
At present it applies only to advocacy in the criminal courts, but anyone who believes that something similar will not be rolled out to the civil courts soon is fooling themselves. How can it possibly be right to allow any old McKenzie friend to appear in court for money, while in the same breath denying that right to solicitors and barristers who, albeit not necessarily at the top of their respective professions, have spent a minimum of five or six years training as lawyers?
Why not abandon this unnecessary red tape, leave the 95% of good advocates alone to get on with providing access to justice, and allow the remaining 5% to ply their trade at cheap rates. This would mean that qualified lawyers, who have a rough idea of what to do in a courtroom but may not be the pick of the crop, could cover the work that is apparently being handled by these unqualified-yet-remunerated so called ‘friends’, but far less dangerously.
Then the public will know that they are getting support from someone who has at least some basic understanding of the law, some sort of professional skill, an understanding of the importance of honesty and integrity, and a requirement to carry professional indemnity insurance to protect members of the public when errors are made.
Mark Humphries is senior partner of boutique City litigation firm Humphries Kerstetter