McKenzie Friends tread 'fine line' providing non-legal advice
What it means to conduct litigation is not clear, researchers find
New research shows that the bulk of work undertaken by paid McKenzie Friends is delivered outside court, with few seeking to represent their clients at hearings. However, there is ‘enough that is concerning in relation to fee-charging McKenzie Friends to merit efforts to tackle the worst of the sector’, the study states.
A study of fee-charging McKenzie Friends and their work in private family law cases, funded by the Bar Council and carried out by legal academics, found that paid McKenzie Friends vary in their motivations, ranging from ‘business opportunists’ to ‘good Samaritans’, ‘family justice crusaders’, and ‘rogues’.
The study found that the work of such McKenzie Friends now extends beyond their originally conceived role of providing in-court assistance such as moral support and quiet advice. Consequently, some can work around the reserved activities of litigation and advocacy, progressing and settling cases outside the scope of legal services regulation.
The researchers reported that many did refer clients to direct access barristers for specialist assistance when required, but in the court observation stage of the study they ‘saw some evidence of McKenzie Friends whose active efforts to exercise rights of audience presented difficulties’.
The report submits that change is needed to address the regulatory gap in which legal advice is not included within the scope of reserved activities, and which currently facilitates a litigant in person to take administrative steps on the advice of a fee-charging McKenzie Friend.
‘We suggest that there is little logic in this position and that the conduct of litigation ought to be more rationally and clearly defined, perhaps even extended to encompass provision of legal advice,’ says the report.
‘Of course, whether considering this or alternative responses to the work of fee-charging McKenzie Friends in future, it will be important to be wary of any measure that would effectively extend the monopoly on the provision of legal services in an environment in which unmet legal need is extensive.’
There was confusion among some McKenzie Friends over whether the steps they were taking would come within the narrow scope of the right to conduct litigation – a reserved activity under the Legal Services Act 2007 – due to the lack of any clearly defined parameters of their role.
‘The range of work performed by a McKenzie Friend can expand and contract, up to the limits of an individual McKenzie Friend’s comfort zone, in accordance with whatever need (or opportunity) appears to present itself,’ the report stated. ‘In such an environment, improvisations and forays into areas that ought to be keep-clear zones are very easy.’
The report also found that some McKenzie Friends had failed to appreciate that they were walking a ‘rather fine dividing line’ between providing non-legal advice and legal advice. Examples of the latter included presenting a summary of relevant case law and outlining options available to a prospective litigant.
Commenting on their findings, Drs Leanne Smith (Cardiff University) and Emma Hitchings (University of Bristol), who carried out the study alongside independent legal researcher Mark Sefton, said: ‘We found much that was positive about the work of paid McKenzie Friends. This is the first research to explore the views of clients of McKenzie Friends and those we spoke to reported receiving a great deal of valuable support from their McKenzie Friends at a relatively low cost.
‘We also found that many McKenzie Friends are keen to engage in relevant education and training and that many have sufficient knowledge and experience to improve the ability of litigants to manage their own cases.’
However, Smith and Hitchings acknowledged that certain business practices needed improvement. ‘The issues to be addressed here relate more to work done outside of the court room than at court. It is clear that any future decisions about responses to the work of paid McKenzie Friends in court should be proportionate to the relatively small scale of the problem compared with the needs of litigants in person more generally within the court.’
Andrew Langdon, chair of the Bar Council, commented: ‘The research is focused on McKenzie Friends who are making money from the service they sell to clients. It must be viewed against the wider backdrop of the good work the traditional McKenzie Friends, who do not charge for their services and act as a support to litigants in person in our courts, provide. This original concept of the McKenzie Friend is a helpful part of our justice system.
‘There is a broader issue here – that many people seeking justice, who may have been denied legal aid following years of cuts to the legal aid budget, have no choice but to turn to a McKenzie Friend, paid or otherwise, at their time of need, for legal advice and support. Although not investigated as part of the study, some McKenzie Friends may charge more than a junior barrister despite McKenzie Friends offering an unregulated service.’
Matthew Rogers is a reporter at Solicitors Journal