Traditionally, ‘McKenzie Friends’ provided informal support on a one-off basis, usually to someone known personally to them. But a small group of individuals operate as ‘professional McKenzie Friends’ (a contradiction in terms, some might say), charging a fee for their support and advertising their services to the general public.
Fee-charging McKenzie Friends are not a new phenomenon, but concern about them has intensified since LASPO’s withdrawal of legal aid for many types of civil and family dispute in 2013. Many more litigants now attempt to navigate the courts without the services of a lawyer. From the point of view of many legal professionals, McKenzie Friends constitute a disruptive presence, rather than a resource with the potential to mitigate the difficulties of dealing directly with a litigant in person. Court staff, judges and lawyers are frequently obliged to work through a technical process alongside someone who has not been schooled in the rules, protocols and conventions of that process. As a source of potentially cheap, unregulated support, fee-charging McKenzie Friends also appear to threaten the business interests of lawyers.
Our independent research study (available at: bit.ly/2sfdayQ), funded by the Bar Council, focused on fee-charging McKenzie Friends in private family law cases. Stage one of the qualitative study consisted of 20 in-depth semi-structured interviews with fee-charging McKenzie Friends and 20 telephone interviews with their clients. Stage two consisted of court observation. Out of 846 private family cases listed on the research court observation days, 14 cases were identified as involving a paid McKenzie Friend and permission to observe was granted in seven cases. The team obtained 14 linked interviews.
Court in the act?
Pending the publication of a response to last year’s consultation from the Lord Chief Justice on reforming the courts’ approach to McKenzie Friends, we suggest, in light of our research, that attention should shift from the work that they do inside the court environment to the work they do outside of court.
A prevailing discourse of anxiety is fuelled by the tendency of legal media to focus on examples of fee-charging McKenzie Friends behaving in problematic ways in the courts. The consultation compounded this tendency, focusing attention on the potential risk they pose as lay advocates, both to litigants and to the administration of justice. Our research suggests that this focus is misconceived. First, because fee-charging McKenzie Friends still only appear in a very small percentage of case hearings and, secondly, because few of the McKenzie Friends we encountered had any interest in exercising rights of audience. We did find hints of a pattern in which the least constructive McKenzie Friends might be more likely actively to seek rights of audience. But this, we suggested, might be addressed through a shift to a system in which judges may invite oral contributions from a lay supporter, but requests to make them cannot otherwise be made.
Most of the work done by fee-charging McKenzie Friends happens away from the courts, including assisting with the preparation of paperwork, managing a client’s expectations and advising the client about their case. As such, the issues raised are, we think, far better classified as issues concerning the regulation of litigation and unregulated legal service provision, than as issues concerning advocacy. It is the approaches they bring to providing unregulated legal services away from the courts that most merit attention.
Anecdotally, concerns are often expressed about McKenzie Friends charging fees that are the equivalent of those that might be charged by qualified and regulated professionals, namely junior solicitors and direct access barristers. However, the combined reports of the clients and McKenzie Friends that we interviewed, suggest that concern on this point may be overstated. While the ‘headline’ fees charged by McKenzie Friends for their services can appear on the high side (hourly fees can range between £30-£90 per hour and fixed fees for a hearing can range from £200-£500), these figures are somewhat misleading. In practice, their charging practices appear to be different from those of many solicitors, resulting in overall costs to a litigant that are considerably lower than the cost of using solicitors. For example, where McKenzie Friends charged a fixed fee for a hearing, interview evidence from both clients and McKenzie Friends indicated that a great deal of preparatory work was undertaken as part of the fixed fee. Consequently, overall costs were kept at an affordable level.
Of course, the services purchased are not directly comparable because McKenzie Friends are unregulated, and usually – though not always – lack relevant legal training. But the clients we spoke to, rightly or wrongly, tended to rate the services of their McKenzie Friends as better value for money than services they had purchased from solicitors. According to our best estimate, the number of fee-charging McKenzie Friends in operation is far too low noticeably to erode the client base of lawyers. However, notwithstanding the lack of any serious competitive threat, we think this highlights the need for legal professionals to reflect on the value and appeal of current fee structures and charging practices.
Wider concerns over business practices
Our research did uncover some concerns in relation to the wider business practices of fee-charging McKenzie Friends. As a group, those interviewed for the study appeared to lack a cohesive approach to their work. On the one hand, the seeds of an emerging professionalism were identified through initiatives such as the nascent Society of Professional McKenzie Friends (SPMF) and in an apparently widespread appetite for relevant education and training. On the other hand, the business practices were rather disparate, with wide variation in reported quality in rigour. Many do not provide clear terms and conditions of service and the take-up of professional indemnity insurance and registration with the Information Commissioner’s Office was not widespread among those we encountered who were not members of the SPMF (which requires insurance and registration as a condition of membership).
We identified a range of approaches to complaints handling. Many McKenzie Friends suggested that, in the event of a complaint, they would attempt to resolve it themselves; acknowledgement of the value of an independent complaints handling process featured in only a small number of interviews (notably more prominent among those with some legal training or background). There is a lack of protection for litigant in person (LIP) clients who have a complaint and very limited avenues of redress available to them.
Consequently, we suggest that McKenzie Friends themselves need to make serious efforts to develop robust administrative procedures. These should encompass clear standards and procedures for complaints handling, data protection and communicating terms of business to clients. Much might also be achieved through clarification and enforcement of rules around advertising of unregulated legal services and attempting to ensure a more consistent approach across the whole sector to complaints handling and reporting customer satisfaction. Last year’s recommendations from the Competition and Markets Authority’s study of legal services are worthy of serious consideration in this respect.
Provision of legal advice
A further issue lies with the extent to which McKenzie Friends provide legal advice. Our research found that not all paid McKenzie Friends were comfortable being characterised as providers of legal advice, with some feeling their unqualified and/or unregulated status made this inappropriate. However, many did not seem to appreciate the fineness of the dividing line they walk between providing non-legal advice, neutral legal information, and tailored legal advice, and we felt that almost all McKenzie Friends we spoke to were acting as legal advisers to some extent. The provision of legal advice is not a reserved or regulated activity under the Legal Services Act 2007. Accessing tailored legal advice is one of the greatest needs that LIPs have and there is a reasonable debate to be had about whether McKenzie Friends can appropriately provide services to meet it. Given that providing tailored legal advice is a highly skilled activity, that debate should include reflection on the merits of subjecting all legal advice providers to some qualifying rules, in the same way that immigration and asylum advice has been subjected to regulatory requirements to prevent the provision of poor quality advice to a vulnerable population. The debate ought also to encompass reflection on the clarity and appropriateness of the scope of the conduct of litigation.
Any responses to fee-charging McKenzie Friends as providers of unregulated legal services should be informed by our finding that they often, though not always, appear sufficiently conversant in relevant procedures and substantive law to improve the capacity of LIPs to manage their cases. As providers of affordable support in an era of extensive unmet legal need, fee-charging McKenzie Friends should not be shunned. But the challenges that their existence poses to the efficacy and adequacy of the current regulatory framework for legal services ought not to be neglected either.
McKenzie v McKenzie
McKenzie v McKenzie  3 WLR 472 confirmed that litigants have a (rebuttable) right to receive lay assistance in the course of representing themselves. An array of later cases elaborated on the content and extent of that right and the common law principles governing its exercise were eventually consolidated into practical guidance, see most recently Practice Guidance (McKenzie Friends: Civil and Family Courts)  1 WR 1881.