The Legal Services Board (LSB) said yesterday that it supports recognition of fee-charging McKenzie Friends as a “legitimate feature of the evolving legal services market”, but also called for safeguards.
The LSB said these should include a trade association, “some form of accreditation” and indemnity insurance.
Responding to a report by the Legal Services Consumer Panel, LSB chairman Sir Michael Pitt said that litigants should have access to “competent and affordable support at the time they need it”.
He said that sometimes this would be full representation, and sometimes support and advice which could be provided by McKenzie Friends, particularly as economic conditions and judicial practice were “beginning to blur the traditional hard and fast boundaries between the regulated sector and the unregulated”.
The LSB chair said he was “cautious about formally accepting” fee-charging McKenzie Friends, and “concerned that they may be misleadingly perceived as offering a service underpinned by the same standards and consumer protections that are provided by a regulated professional”.
He went on: “That is not to say, however, that we are advocating the regulation of the services provided by McKenzie Friends. To do so might drive such provision out of the market and, in any event, the basis on which this would be done is unclear given that many of the services are unreserved.
“In so far as the activities of any McKenzie Friend bleeds across into the unauthorised provision of a reserved legal activity such as exercising rights of audience, the appropriate controls lie with the judiciary, who are ultimately responsible for allowing this to happen in any particular case.”
Sir Michael said the judiciary was already considering the issue of McKenzie Friends as part of its work on litigants in person and the Lord Chief Justice had announced the establishment of a working group.
Noting the “sceptical – and indeed sometimes hostile – viewpoint of many within the legal sector on the issue of McKenzie Friends, and the reasons for it”, Sir Michael said it was important for the legal profession and approved regulators to “respond positively to this challenge”.
He said there was a need for “clear, targeted information” to help potential litigants understand “possible options for support and the positive and negative aspects of each”.
He agreed with the panel that should be “more certainty” on the definition of “the conduct of litigation” but said the LSB did not have the statutory power to declare the meaning of legislation and it was more appropriate for the courts to deal with it.
Sir Michael reiterated this point in a letter to Mrs Justice Asplin, chair of the judicial working group responding to the consumer panel on the issue.
He added that he understood from the panel that one possible outcome of the working group’s activity would be updated guidance on McKenzie Friends for judges.