McKenzie Frenzy: regulating the irregulars

Posted on 7th Mar 2014 in Legal Profession

The Legal Services Consumer Panel (LSCP) recently proposed an investigation into the so-called “professional” McKenzie Friend market amid concerns that consumers (litigants in person) are being exploited and abused. Perhaps surprisingly, given how obsessively the legal professions are currently regulated, these self-appointed in-court helpers are not subject to any code of practice, let alone formal regulation. Nor are their activities covered by the legal ombudsman or any other complaint procedure.

Indeed, the whole idea of a “professional Mckenzie Friend” seems something of an oxymoron. At their best, they are angels who provide a much-needed fill-in service where legal aid and pro bono fear to tread, and for a fraction of what you’d have to pay a “real” lawyer. At their worst, like the unlicensed mini-cabs of old, they appear to offer a cheap ride to success, but without the requisite “knowledge” there’s no guarantee you won’t end up being dumped, penniless, on the wrong side of town in the rain. (And you can forget about professional liability insurance.)

Nevertheless, they are here to stay, and in numbers inevitably swelled by the drastic cuts in the legal aid funding that could have paid for properly regulated professional lawyers. The Judicial working Group on Litigants in Person reported in July 2013 that, at the beginning of that year, the number of people benefitting annually from Legal Aid had already fallen to one million, and with coming into effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1 April 2013 that number had been more than halved. In consequence, the LSCP noted in its Work Programme 2013-2014, “the Civil Justice has Council predicted that people who represent themselves in court will soon become the rule rather than the exception”.

Where do they find help? A casual search on the internet turns up several pages of results for “McKenzie Friends”. They are organised, established, but not regulated. Yet they reach out to the angry, confused, bewildered litigant in person, offering help, support, an inside track. In subtle ways they support the prejudice that lawyers are only in it for the money – and yet they, somehow, are not?

brief

What is a KcKenzie Friend?

The expression “professional Mckenzie Friend” implies that there is such a thing as an “amateur”, and yet until recently that’s all a McKenzie Friend ever was: a helpful non-lawyer (by definition an amateur) who was permitted to assist the self-represented litigant in the course of their preparation for and appearance in court.

The term derives from McKenzie v McKenzie [1971] P 33, in which the Court of Appeal criticised the judge in divorce proceedings for denying one of the litigants, appearing in person, the assistance of an Australian barrister, who was not qualified to practice in the UK, but had offered to take notes and make quiet suggestions to the litigant in person as the hearing proceeded.

In that case, the friend was a trained lawyer, acting in his own time in a jurisdiction in which he was not qualified to act professionally; but in many cases the friend is genuinely amateur in the sense of not having any formal qualification. Hence the alternative name “lay assistant”.

Amateur lawyers are two-a-penny, of course: “barrack-room lawyers”, as they were also known, a variant of the officious bystander or interfering busybody of DIY legal advice. Sometimes they claimed to know more about the law than professional lawyers, and in some cases or in some areas they would probably be right. Sometimes the knowledge and experience they have gained has been at the cost of their own litigation; having survived the game themselves, they feel emboldened to pass on their wisdom to new players.

What is often at play is an issue of trust. Litigants in person tend to feel bruised by a system in which they are made to feel like powerless outsiders, and are more inclined to trust others in the same boat than lawyers, especially as the only lawyers they do encounter are often working for the other side (but bound by professional ethics to offer guidance and to an unrepresented opponent).

Lack of trust is not confined to self-represented litigants: according to the LSCP, at para 3.23, only 43% of the general public told its annual tracker survey that they would “generally trust lawyers to tell the truth, compared to 80% who would trust doctors and 70% who would trust teachers”.

Regulatory issues

The market for professional McKenzie Friends may still be an emerging one, but, given the drastic reduction in the availability of legal aid, it is one in which the “substantial growth” noted by the Judicial Working Group is likely to continue unabated. It has begun to ring alarm bells for a number of reasons. As the Group’s report noted, at para 6.9, “they are not legally trained; they are unregulated and hence owe no obligations derived from professional regulation; and they do not owe any obligation to the court”.

Moreover, according to the LCSP’s Work Programme 2013-2014, at para 3.23: “There is anecdotal evidence that some individuals acting as McKenzie Friends are struck-off solicitors, raising obvious ethical concerns.” Even if they are not struck off, qualified lawyers may be acting as paid-for McKenzie Friends in order to avoid the burdens of regulation.

In a recent discussion about professional McKenzie Friends on Twitter, one commentator expressed the concern that “it may be a backdoor way to provide unregulated legal services.” Another, while saying she would not want to criticise individuals, some of whom were sensible, knowledgeable and helpful, said there was a problem in that litigants in person and judges could not differentiate between the good and bad until the damage was done. Another said that it could be a problem if they were trying to be advocates or conduct litigation. Some had particular motivations on top of earning a living. They might well have some agenda or axe to grind, or belong to some pressure group, but the litigant would not necessarily be aware of this, or, if they were, that it would be a problem in presenting their own case.

In terms of regulation, a first step would be to allow the Legal Ombudsman to take complaints against them. While a system of accreditation and/or regulation might assist judges and litigants in dealing with professional McKenzie Friends, it would also be useful to collate a list and data on complaints against them. It was noted in the course of the discussion that mediation services were also basically unregulated, as was pre-litigation advice generally, though in relation to mediation there were organisations like CIArb (the Chartered Institute of Arbitrators) to which mediators could belong. No such organisation existed for professional McKenzie Friends.

(Thanks to Carl Gardner, Lucy Reed, Professor Richard Moorhead, and Matthew Taylor for taking part in this.)

One of the commentators, Professor Moorhead, has written professionally on the subject. In “Litigants in person: unrepresented litigants in first instance proceedings” (DCA Research Series 2/05) Moorhead and co-author Mark Sefton spoke of the confusion among court staff as to the rights of litigants to bring in McKenzie Friends, professional or otherwise, and as to what constituted the professional version (repeat players, or those doing it for money). Another problem was litigants bringing someone to help who did not necessarily have legal knowledge but had some expertise, like being an accountant, and came to court to help, but who was “completely and emotionally committed to” the litigant’s case, and was likely to add to the litigant’s difficulties rather than help minimise them. Among the judges spoken to, the attitude seemed to be that non-qualified advisers from organisations like Shelter and the Citizens Advice Bureaux could be helpful merely by attending, but that other persons such as letting agents conducting cases on behalf of landlords were not only unhelpful, and likely to get things wrong, but were probably unlawfully conducting litigation in breach of the Solicitors’ Act.

Rights of presence (and audience)

The rights to conduct litigation and to act as an advocate in the court system are governed by the Legal Services Act 2007. Both rights are restricted to professional lawyers. The only exception is for litigants in person (section 19). However, the Act preserves the court’s inherent power to allow any individual to act as an advocate before it in relation to a particular case: Sch 3, para 1(2). (See also CPR PD 27, para 32.) The right is granted in the interests of justice, to enable a lay person to assist a litigant in person during the hearing. It is rarely, if ever, extended to actual advocacy: see Paragon Finance plc v Noueri [2001] EWCA Civ 1402; (Practice Note) [2001] 1 WLR 2357.

Currently, there is a Practice Direction, described as “Practice Guidance” (apparently this means it doesn’t need to await the approval of the Lord Chancellor), issued in 2010 jointly by the Master of the Rolls and President of the Family Division: Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881 which, at paras 18-26, deals with “Rights of audience and rights to conduct litigation”. Among other things, it expressly reiterates the prohibition on McKenzie Friends addressing the court. In a recent case, Graham v Eltham Conservative & Unionist Club [2013] EWHC 979 (QB) (as annexed to JWG report), Hickinbottom J (who is currently the chairman of the Judicial Working Group) gave further practical suggestions on how courts could approach the question of granting a lay person the right to speak.

The rise of “professional” lay assistants, and potentially lay advocates, has prompted a reappraisal of the current approach. The LSCP has stated its intention to investigate and consider the regulatory implications of the rise in litigants in person.

Some potentially helpful suggestions

The LSCP has not yet completed its research into the provision of paid-for McKenzie Friend services, let alone proposed any regulatory measures. The Judicial Working Group’s report did make a number of recommendations, including

(1) rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants;

(2) considering the merits of introducing into the CPR and the Family Procedure Rules (FPR) rules governing the exercise of the right to reasonable assistance, the right to conduct litigation and the right to exercise rights of audience (as recently introduced in Scotland in the Rules of the Court of Session);

(3) considering the terminology used for those who assist litigants in person, given that McKenzie Friends strictly applies only to those who sit quietly, taking notes and assisting a litigant in person in court, and whether different terms could be used to reflect other roles, such as conducting litigation or speaking in court.

A report and further recommendations are expected to be made to senior judiciary in the next couple of months.

In the meantime, for what they are worth, here are some suggestions.

  1. The term “McKenzie Friend” should be abandoned forthwith. It is an example of the kind of whimsical obscurity (“Wednesbury reasonableness”, “Mareva injunction”, “Tomlin order”, “Part 36 offer”, etc) which is most likely to alienate the very people, viz litigants in person, whom the role to which it refers is intended to help.
  2. Instead, the term “Lay Adviser” should be used for any legally unqualified person who provides advice, whether paid or not, to litigants in person. This would include volunteers working in law centres, Citizens Advice Bureaux etc. But it would also be the term used to describe a friend or even a qualified person acting in an unqualified or unofficial capacity (such as the Australian barrister from the original McKenzie case) in helping a self-represented litigant in court
  3. The more specific term of “Lay Litigator” should be used to describe (as a sub-category of Lay Adviser) any legally unqualified person or organisation that conducts litigation; and “Lay Advocate” should be used to describe any such person who speaks in court on behalf of a litigant in person.
  4. Lay Litigators and Lay Advocates should be accredited to act in those capacities by or on behalf of the Court Service and/or Tribunal Service, as should Lay Advisers to the extent that they act on more than a one-off basis (ie if they routinely offer such a service, for money or otherwise).
  5. Lay Advisers, including Lay Litigants and Lay Advocates, should undertake to abide by a Code of Conduct; and should enter with any court papers or bundles submitted before trial a Notice identifying themselves and confirming the capacity in which they act on behalf of an unrepresented litigant.
  6. The Legal Ombudsman should consider and deal with complaints by litigants or judges (or other affected parties) against professional Lay Advisers (PLA).
  7. Consideration should be given to requiring professional Lay Advisers, as a condition of accreditation, to take out some form of professional indemnity insurance to cover themselves against potential claims for damages for breach of contract and/or negligence.
  8. Consideration should be given to requiring or encouraging PLAs to form and ultimately to be regulated by a professional body, which in turn would have to report to and be regulated by the Legal Standards Board.

Of course, it could be argued that if and when all of these suggestions were actually implemented, a litigant in person could look from the lawyers to the lay advisers and then back to the lawyers and scratch their heads and wonder what the difference was. Not least because of one thing we may be sure: a lot of these paid-for lay advisers would turn out to be perfectly well qualified lawyers who just couldn’t get a proper legal job in the austere new post-Legal Aid world. And it’s not at all clear how that would serve the interests of justice or, in the long run, after putting things right again, save the taxpayer any money.

 

PMM