Law on the cheap is costing the profession dear
The new market for paid McKenzie Friends is further evidence of a broken justice system, says David Kirwan
We all love a good deal, but the new ‘law on the cheap’ market that has emerged in the wake of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is a disastrous consequence of the new rules.
People looking to access affordable legal advice are now turning to unqualified, unregulated, uninsured legal advisers – including paid McKenzie Friends.
Of course, this isn’t what McKenzie Friends originally set out to achieve; historically, they were volunteers who simply wanted to provide moral and practical support for litigants in person.
But the LASPO cuts have led to what were once just friendly faces becoming, in some cases, fully-fledged businesses charging vulnerable people huge sums to provide what is usually passed off as professional legal advice.
And that ‘advice’ can have devastating results. Over the past few months the courts had to deal with the ramifications of ‘advisers’ who are themselves operating on the wrong side of the law.
Last September, for example, a High Court of Ireland judgment revealed that an English couple, acting on advice from a McKenzie Friend, had brought their child into the country in defiance of an interim care order.
Then, more recently, the High Court ruled for the first time in Paul Wright v Troy Lucas (a firm) and George Rusz, on the duty owed to the public by unqualified advisers after a client was given “positively harmful” advice from someone describing himself as an “experienced legal professional”.
In that case, a man who had suffered permanent disability after three plastic bags were left inside him during an operation at the Basildon and Thurrock NHS Foundation Trust had been able to pursue only part of a claim against the trust as a result of the negligent advice from Rusz and Troy Lucas.
Paying the price
The court found that the duty and standard of care should be determined by that which the unqualified legal advisor assumed and went on to order Mr Rusz to pay £263,759 to Mr Wright, plus £73,200 costs as a result.
This was a key ruling for consumers unable to afford solicitors fees and looking for alternatives, as it made clear the fact that those who make fraudulent claims about their expertise then achieve a result for their client inferior to that which would have been achieved had they enlisted the services of a qualified solicitor will pay the price.
The ruling brought about great satisfaction to the growing number of qualified legal professionals who have become increasingly concerned about the exploitative nature of these firms and individuals and the damage they are doing, both to their clients and to the legal system as a whole.
Not only are they discrediting qualified legal professionals with years of experience and hard-earned qualifications under our belts by suggesting their services mirror ours in all but price, they are also putting the client through unnecessary stress and cost, not to mention placing them at risk of incurring their own criminal record, through handing out uninformed, unreliable advice.
It is disappointing, then, that following a three-year consultation, the judiciary chose to do little more than refer the key matter of banning fee recovery by paid McKenzie Friends to the government when it published its recommendations earlier this year.
I can understand their point. After all, given the huge part the LASPO cuts have played in the increase of LIPs, the government must take on a large chunk of the responsibility for finding a solution to the problem.
But with so many factors at play, this is no time to be passing the buck. The judiciary, the government, the Legal Services Board, and indeed the legal sector as a whole must all work together to protect those forced to represent themselves and create a set of concrete regulations, rather than guidance, to which McKenzie Friends must adhere.
Because while we allow paid McKenzie Friends, and others like them, the freedom to continue in this manner, we are hindering, rather than promoting, the access to justice we so desire – and once again, it is the most vulnerable among us that are paying the price.
David Kirwan is managing partner at Kirwans kirwanssolicitors.co.uk