The case for excluding paid McKenzie Friends from the courts “has not yet been made out”, research for the Bar Council has concluded.
The research, led by Cardiff University, also found that most of the work carried out by paid McKenzie Friends was delivered outside court, and advocacy was merely “the tip of the iceberg”.
Researchers said that although “it is common to think of McKenzie Friends as posing a challenge to rights of advocacy, as a result of this research we think the biggest potential challenge is to the regulation of litigation”.
The researchers said the scope of litigation should be “more rationally and clearly defined”, and possibly extended to cover some elements of legal advice.
“What it means to conduct litigation is not clear. We have seen that, in practice, fee-charging McKenzie Friends are restricted from doing very little by the prohibition on the conduct of litigation by unauthorised and unregulated individuals.”
Researchers warned that removing the right of paid McKenzie Friends to provide “any court support” could be damaging to some litigants in person (LIPs).
“This study identifies risks that could be explored further, but in our view the case for excluding fee-charging McKenzie Friends from the courts has not yet been made out.
“For many LIPs, the choice is between being unsupported or using a McKenzie Friend – free support is limited and paying for lawyers is beyond their means.
“Furthermore, the fee-charging McKenzie Friends in our sample, on the whole, seemed sufficiently competent to improve on LIPs’ abilities to manage their cases.”
The report, A study of the work of fee-charging McKenzie Friends and their work in private family law cases, called for paid McKenzie Friends to be allowed to exercise rights of audience “at the invitation of the judge, rather than on the application of the litigant”.
The research was led by Dr Leanne Smith, senior lecturer in family law at Cardiff University, joined by Dr Emma Hitchings at Bristol University and Mark Sefton, an independent legal researcher.
Dr Smith said researchers had interviewed 26 of an estimated total of around 100 paid McKenzie Friends. The report was based on interviews with a mixture of McKenzie Friends and their clients and observations of private law family cases, with follow-up interviews.
“We probably spoke to the more established cohort of McKenzie Friends. Those who dip in and out may be less competent at court.”
She said that “there might not be consensus in the legal profession on where the boundaries lie” on what constituted the conduct of litigation.
“I do think there is a problem where legal advice is unregulated, and it’s not clear where the boundaries are. It is not in anyone’s interests to have a blurred boundary.”
The report characterised different categories of paid McKenzie Friends as the ‘business opportunist’, the ‘redirected specialist’, the ‘good Samaritan’, the ‘family justice crusader’ and ‘the rogue’, though Dr Smith said only one rogue had been encountered in the research.
She called for a “risk-based review” of the reserved legal activities and suggested that one result could be a “half-way house” in terms of regulation for paid McKenzie Friends.
Andrew Langdon QC, chairman of the Bar Council, commented: “The risks of McKenzie Friends being able to seek payment for representing their clients in court, despite being unqualified and offering no disciplinary process and no requirement to have insurance, are considerable and so vulnerable clients have little protection.
“The research suggests that the number of paid McKenzie Friends seeking judges’ permission to represent clients in court at present is smaller than many feared, and one view is that it can and should be nipped in the bud without impacting on access to justice.”