Probe into growth of ‘professional’ McKenzie Friends

Court representation: some McKenzie Friends charge £40 an hour

The Legal Services Consumer Panel has begun an investigation into the emergence of ‘professional’ McKenzie Friends who charge litigants in person for their services, it has emerged.

The panel said that while such services are mostly prevalent in family law, it has come across providers who offer such assistance in criminal cases.

Some offer to act as lay advocates, subject to the judge granting them rights of audience on a case-by-case basis.

It is the latest issue to highlight the divide between regulated and unregulated legal advisers. Last year the panel expressed concern that struck-off solicitors are acting as McKenzie Friends, raising ethical concerns and providing a service that gives no recourse to the Legal Ombudsman.

The panel’s starting position is to recognise that professional McKenzie Friends are a feature of the legal system which is appearing to grow and that there is a lack of knowledge about this emerging market which would be useful to address.

Over the next few months the panel is to build a picture of the market, and next month plans to host a seminar to elicit views on what the main issues are and how they should be addressed.

Suggested policy responses include outlawing charging a fee for McKenzie Friend services, creating a blacklist or developing a self-regulatory solution.

A spokesman said: “One of the predicted implications of the legal aid changes is an increase in litigants in person and consequently an opportunity for McKenzie Friends to help fill the gap in legal representation which many people are unlikely to be able to afford.

“McKenzie Friends have traditionally operated as volunteers but we have identified an emerging market of individuals and microenterprises which charge for these services, perhaps at an hourly rate of £40 an hour upwards.

“There are mixed attitudes towards this development. One school of thought has concerns that these people may provide poor advice, offer little in the way of consumer protection, prey on the vulnerable, promote their own world view – for example, on parenting – and undermine lawyers’ reserved activity rights.

“The other says that some help for litigants in person is better than none at all, some McKenzie Friends are very competent and ethical, and that lawyers are not losing out because their services are unaffordable for the client group using these services.”

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    Readers Comments

  • An interesting article, and if I may make a couple of observations.

    The Practice Guidance on McKenzie Friends states the court can bar a McKenzie Friend from entering court. No doubt this mechanism could be expanded (and the guidance would already allow this) so the judiciary can bar individuals whose conduct is inappropriate. Perhaps they are best.

    As for the issue of fee charging, there are McKenzie Friends who also do not agree with charging (but few in a position to be so generous!). Iin the real world, how many people are in a position to give up time during the working day to assist people in court. Also, I tend to think the adage ‘the labourer is worthy of the hire’ is not unreasonable. People have mortgages to pay, children to feed, and expenses to cover. I do not think those on an income have the right to tell others to work for free.

    Charging McKenzie Friends have been around for at least the past seven years. It is not a new thing.

    People do have a choice, but if they cannot afford a solicitor, because legal representation is too expensive, the legal profession should not interfere with their free choice… and one of those is the right to reasonable assistance (which as our President of the Family Courts says, should only be refused in rare instances).

    Michael Robinson

  • Hi Neil
    I am a part time McK charging £15 ph, sometimes not getting it, such is life. I have also had finding in my favour from the Legal Serv Ombuds against SRA for not dealing with a malpractising solr in family law. I am currently assisting another LIP who has a dodgy solr before Resolution panel and also SRA for child endangering wrongdoing. So please less re ethics because I have found them significant by absense in the legal profession.

    Vincent McGovern.

  • Finola Moss says:

    Might not be a question of regulated and unregulated, but establishment approved, or not.

    The public may be losing confidence in conventional family/ mental capacity act lawyers. The question that should be asked is why, rather than if they are being exploited.

    By the removal of most legal aid from family matters, it is inevitable that the public will have to become lawyers themselves, or choose someone they feel they can trust, who may not be the advertising ABS etc.

    The only problem from a client prospective is can the representative be trusted, sued, and for what, and their insurance provision, but this appears an increasing problem for regulated lawyers.

    Why are the legal services consumer panel getting involved, have there been complaints about services of these providers?

    Surely in a free market it should be the public’s choice.

  • dai says:

    Are they investigataing the unregulated ciosts consultants being used in costs procveedings?

    They often hav eno knowledge of the rules or procedures other than adding up/arithmetic [some do no0t do that properly either] yet their costs are paid by the legal services commission.

    if professional mckenzie friends are to be regulated then legal aid can be paid to them? It would certainly drag down the cost of ltigation and funding as one would expect the pro MKF charges to rise and solictors and barristers to come down meeting somewhere in the middle. would make the barristers strike against lower legal aid fees look futile?

    I echo one/some of the copmments above regarding solicitors the panel should be looking into the failure of regulation with solicitors and we all know how hard it is to get a judgement in the lower courts regarding the conduct of soliciitors without such a judgement the SRA and Law Ombudsman will not investigate. will it be the same rules for pro MKF??

  • Let’s take two areas of family law where I’ve helped litigants: mothers and fathers in private law and working to assist mothers who have had their children taken in public law.

    Fathers contact me after they feel they have let down by their solicitors. Hearing after hearing they get nowhere because their own solicitors allow the other side to play dirty. The courts and CAFCASS are over-sympathetic to the mother. I pick apart the previous documentation, prove to the court it has been led up the garden path, and the father gets to see the children. Lawyers have a code: “I will keep quiet about the other side’s misfeasance and pocket the extra cash it brings for me too.” Lawyers are officers of the court, which to some seems to mean they will provide the court with as much business as possible. Why wrap a case up in one or two hearings when you can do it in 100?

    In public law, the emphasis for many is on the removal of the child from the parents. Local authority lawyers omit key evidence from court bundles that support parents who wish to keep the child. The solicitors representing respondent parents don’t obtain case management documentation to counter the LAs and reveal their malfeasance. I have heard of many cases where the lawyers have been sacked half way through care proceedings and a McK has taken over once parents finally get to know the process. I will say, however, that the degree of lies and cheating on behalf of some LAs means respondents’ solicitors have too much to do on the money they are paid and too little time. So they just put their heads in the sand and take the money.

    Fill a room with 100 lawyers and ask a question as to legal opinion on a specific family law problem you get lots of different answers. They will all be able to tell you the process; what form to fill in. Because for many, that’s all they do – forms and applications. Arguing the case properly loses money.

    There is effectively little or no accountability for family lawyers. Even if you win a complaint, the compensation is pathetic.

    There are some competent lawyers out there but how would anybody know who they are? Hiring a lawyer is a an expensive lottery; some have no real knowledge of the relevant law; no vested interest in clearing things up; no accountability; no redress for poor work. poor work is covered up within the profession. Word soon gets around about poor McKenzies, however.

    Then there’s the lack of confidence in the judges. Fathers can have the best case possible and still be refused contact.

    Little wonder then, that people are using McKenzies when they are forced to use the lottery of the family courts. If you’re going to get screwed over, you may as well cut your losses from the start. A good McKenzie will not engage in the same games as the lawyers and his lack of duty to the court helps him to properly inform the court.

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