McKenzie Friendly fire?

Posted on 28th Mar 2017 in Legal Profession

The controversy over so-called ‘professional’ or paid McKenzie Friends  flared up again last week. Paul Magrath reports on what is often a regulatory minefield.

Image from McKenzie Friends Marketplace website

A new outfit, called McKenzie Friends Marketplace (MFM) has been set up by Fraser Matcham, a second year law student in London, as a sort of business hub for aspiring students and others to offer their services as fee-charging or ‘paid’ McKenzie Friends (PMFs).

According to Legal Futures,

‘Matcham, who is 19, has secured the help of Westminster University, where he is studying, and BPP University Law School with the venture, which is backed financially by two private investors.’

BPP on its own blog was even more upbeat, and blithely unaware of any legal regulatory pitfalls:

‘A new online platform supported by BPP University Law School and the University of Westminster has been launched to enable aspiring lawyers to put their skills into practice with real-life court experience.’

The PMFs (who may or may not still be students, though students would charge less) would need to be members of the scheme, which means complying with a set of rules including a code of practice set out on the MFM website. (These are not, it has to be said, well drafted. The first advice for anyone setting up in business must be to get some expert advice about it.)

MFM has come in for a bit of flak, notably from legal bloggers Lucy Reed (a family law barrister) on Pink Tape (A little knowledge is a dangerous thing) and and Giles Peaker (a housing law solicitor) on Nearly Legal (BPP, fee charging McKenzie friends, and errors of judgment).

The main problems they identify are

  • Complete lack of supervision (or even training so far)
  • Use of MFM’s own account to handle fees (and thus hold client money)
  • from which fees MFM takes a healthy cut (the business model, presumably)
  • Lack of clarity over risks covered by professional indemnity insurance (in absence of clear professional standards to be met)
  • Communications with clients only via MFM’s own communications system (raising issues of client privilege and data protection)
  • Despite this, not yet registered as a registered data controller with the Information Commissioner’s Office (ICO)
  • Lack of contract between client and MF covering eg duty of confidentiality
  • Lack of consumer protection for clients
  • Code of Conduct confused and confusing

Reed suggests the colleges are partly to blame:

‘There is an increasing trend amongst the Law Schools of Higher Education establishments to devise, offer or support novel schemes that purport to “offer” law students who attend their establishment some better experience, some more shiny star to put on their CV than the institutions they are competing so fiercely with.’

And yet, says Peaker,

‘… the students will charge fees, and MM will take their cut. And the client has no realistic recourse if the student’s ‘legal advice’ turns out to be catastrophically bad …

This is a disaster waiting to happen.’

BPP refer to MFM’s members performing legal services through a ‘quasi-regulated role’ which prompted one barrister to tweet sceptically that this was akin to being a little bit pregnant.

 Somewhat alarmingly, Matcham told Legal Futures that ‘Struck-off lawyers could join the site if they were not in breach of the code of conduct’. I should think this might make any sensible client feel somewhat ‘quasi’ about using their services.

Another aspect of the problem has been highlighted in a third blog, by Dr Leanne Smith (a university law lecturer) on Lawyer Watch, who points out that law students are often encouraged to gain useful experience in legal work in order to boost their CVs before applying for training or pupillage. There is a risk, though, that students who are still learning the law could do more harm than good if they attempt to ‘learn on the job’ at the expense of clients too poor or desperate to go to real grown up qualified professionals. As Smith says:

‘students who work with real clients on pro bono schemes require intensive supervision and, often, direct assistance to ensure the work is of an acceptable standard. I doubt even the strongest undergraduate could offer something sufficiently valuable to a litigant to justify charging for her support…’

Her concern is partly that it appears to be a way for law students to monetize what little knowledge they already have, instead of boosting their bank balances with more mundane part-time employment, and partly that BPP (and possibly the University of Westminster) have allowed this to be set up with their no doubt valuable endorsement before having any training or supervisory regime in place. Thus BPP, she says,

has not exactly covered itself in glory in publicly allying itself with an initiative that has undoubtedly been launched prematurely’.

However, she also sees merit in the scheme as an undergraduate project and admires Fraser Matcham’s enterprise and initiative in setting it up. She suggests, however, that he drop his ‘hot potato’ until he has better experience and advice.

Response: the journey continues

He does not appear to have taken that particular piece of advice; but he has now responded to many of the criticisms in a press release, published on the company’s Facebook site, on 27 March 2017.

The McKenzie Friends Marketplace will continue on its journey. We will consider all the constructive criticism that has been provided to us. Where valid criticisms are discovered, we aim to respond quickly.’

It confirms that it has applied to the Information Commissioner’s Office to register as a data controller and that MFM ‘does not see or have access to any of the messages’ on its ‘secure messaging system’. Insurance coverage is a mandatory requirement for all members for whatever services they provide. As to these, it says the Code of Conduct will be updated with a new clause:

‘prohibiting legal advice from being provided by student members that are active students. Those student members will still be able to vastly assist with multiple other legal services.’

That may be felt to address the most serious dangers identified in the criticism, but the fact remains that proper training and supervision ought to be the base point for any endeavour involving anyone not fully qualified to practice law. If Mr Matcham is to continue with his brave new enterprise, he will need to hone his advocacy skills to deal with the likely response of qualified, regulated professional with which, to some extent, it is competing.

McKenzie Friends: need to know

In a nutshell, a McKenzie Friend (MF) is someone who is not trained or qualified to act as a professional lawyer, but is permitted to attend court with an unrepresented litigant (a litigant in person or LIP) in order to provide moral and practical support, help them organise and find relevant documents when needed, and take notes. They do not have a right of audience, but they can, in exceptional circumstances, be permitted by the judge to speak on behalf of the LIP.

The name comes from a case, McKenzie v McKenzie [1971] P 33, in which, as it happens, the friend was a barrister but from another jurisdiction (Australia) and so had no right of audience.

In 2010 the senior courts issued practice guidance on what MFs can and can’t do in court: see Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881; (see original Judiciary PDF).

Broadly speaking, there are three types of MF. First, there are people who are literally friends of the litigant or members of their family, who come to help them in court. Second, there are lay volunteers who work for charities that help and advise litigants who can’t afford to go to a lawyer and are not eligible for legal aid. Third, and most controversially, there are what are called ‘professional’ or ‘paid’ McKenzie Friends (PMFs), who perform all the same services as any other kind of MF but charge for them. It is this third category that has caused most problems.

In a report entitled Fee Charging McKenzie Friends, commissioned by the Legal Services Board and published in April 2014, the Legal Services Consumer Panel (LSCP) recommended that PMFs should get their own trade association and be recognised as “a legitimate part of the legal services market” but that they should not require to be regulated.

This annoyed the various legal professions whose regulators (such as the Bar Standards Board, Solicitors Regulation Authority et al) are in turn regulated by the LSB, because while they are all required to be trained, insured and regulated to the hilt, the arch-regulator seemed to be quite happy to allow untrained, unqualified, and unregulated competitors to have access to the same market with none of the same protections for consumers.

Some McKenzie Friends, paid or voluntary, are undoubtedly providing a helpful supplementary service in the post-LASPO world, where legal aid for many types of case has been cut back or removed altogether pursuant to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. But others are exploiting a need in what seems to be an marketplace whose regulation seems at best inconsistent.

McKenzie Friends Marketplace is by no means the first business set up to provide fee-charging MF services. Last year Legal Futures reported on another outfit, Graysons Legal, in Kent, whose founder, Mark Grayson, styles himself as The Hon. Lord Grayson and claims to have a “proper solicitor’s briefcase” to reassure clients of his professionalism. He charges £350 a day for basic family cases. See McKenzie Friend firm grows — and thanks judiciary and Bar for the publicity

The risks of inadequate regulation were highlighted earlier this year when a PMF was jailed for 9 months perverting the course of justice in a family court. See Law Society Gazette, McKenzie friend jailed for ‘deceit in family court’

Further reading

McKenzie Friends: a litigant’s guide

McKenzie Frenzy: regulating the irregulars