Cowboys of the wild west?

Pic by Christopher Dombres on Flickr (creative commons) - thanks!

Some context on the influence of fee-charging McKenzie Friends in family law

[Ed : This is a guest post from Leanne Smith (@leanneslaw) and Emma Hitchings. I am very grateful to them for taking the time to respond to my blog post about their research. They are of course, absolutely right in everything they say. If it were not sufficiently clear from my original post : my suggestion that the research dealt only with the tip of the McKenzie iceberg (which the authors accept as factually correct) was not intended as a criticism, merely an observation about the scope of the question asked – the research was only looking at the tip of the iceberg. I was pleased to see that research had flagged the existence of what is often forgotten – the stuff below the water line. Leanne and Emma are right to broaden the issue further beyond the “McKenzie” label (which I had perhaps overstretched in a search for shorthand) and to explicitly encompass all sorts of online information and advice.]

 

Last week the report of our Bar Council commissioned research on fee-charging McKenzie Friends in private family law cases was published (the full report can be accessed here and an executive summary here). One of the report’s key messages is that we found little evidence of McKenzie Friends seeking to exercise rights of audience on a regular basis and plenty of evidence that the bulk of the work done by McKenzie Friends is done outside of court. The work McKenzie Friends do in court, we said, is ‘the tip of the iceberg’. This was the finding that last week’s Pink Tape blog outlining Lucy Reed’s perspective on the research focused on, indicating that it was not at all surprising. We hope we can be forgiven here for indulging in a few words in defence of the utility of the research. We readily accept that many in the legal professions have been aware for some time that paid McKenzie Friends operate predominantly outside court, but research has an important role to play in interrogating anecdotal evidence and providing more systematically derived evidence in order to validate or debunk it.  This is no less true because perceived experience is validated by a set of results. In this instance, our hope is that the findings of the research will function as a turning point for discussion on the subject of fee-charging McKenzie Friends in a way that the observations of some professionals who encounter them has not. In addition there are, of course, some more granular observations that we consider important buried in our report, though we will resist spoilers for those who haven’t yet finished reading it…

 

In her post, Lucy expressed some disappointment that the remit of the research was limited in such a way that it failed to get to what she perceptively identified as the ‘real meat’. That is:

The “advice” before the hearing that colours the behaviour and responses of a litigant in sometimes imperceptible and sometimes oh so obvious ways – but always in ways which are difficult to deal with, because the whisperer is unseen and his advice can only be guessed at.

 

As far as researching transformations in the provision and consumption of legal advice goes, we share the view that there are deeper revelations to be had by exploring what is largely new and unseen (and paid McKenzie Friends are neither of those things). Our research project was indeed designed with a view to exploring what McKenzie Friends do in court. It seems likely that the Bar Council commissioned it with as much concern for the consequences that incursion of McKenzie Friends into the realms of advocacy might have for barristers as for the broader consequences for access to justice. Understandable as that may be, this is an area in which the legal professions, we feel, have refused to see the wood out of jealous regard for the trees. To worry over the way in which courts deal with paid Mckenzie Friends, and vice versa, is to miss the important point that, as Lucy notes, ‘litigants are most vulnerable to exploitation and bad advice long before they come into a court room’. This observation taps into, but does not fully capture, a broader problem related to how individuals access and use advice about private family disputes in a world that is a) post-LASPO, and b) characterised by online exchanges of information and experience. One of us has previously written of how this convergence of trends has created a sort of Wild West, in which potential litigants, either unable to afford professional legal advice or unable to discern their need for it, might roam the internet and happen upon all sorts of information of doubtful pedigree and utility. The consequences are potentially far reaching, and likely to manifest in both the solutions to family problems that are constructed by those who never approach the courts and in the perceptions of family law and family justice that those who do use lawyers and the courts bring with them.

 

So where do paid McKenzie Friends fit into this landscape? They are in a sense emblematic of the Wild West, or at least the thrust of discussion among legal professionals and researchers to date has often cast them as such. Suggestions that their work ought to be curtailed have been made by the Civil Justice Council (which concluded that courts should be reluctant to extend rights of audience to them, see p 54 here), in the Lord Chief Justice’s consultation on Reforming the courts’ approach to McKenzie Friends (which proposed that they be precluded from recovering fees for in-court work), and in the conclusion that the Chairman of the Bar drew from our research (i.e. that their work ‘can and should be nipped in the bud’). All this generates a sense that McKenzie Friends are the maverick outlaws of legal advice and support provision –  the cowboys of the Wild West.

 

The concerns are not entirely unjustified, of course. As our research notes, certain aspects of the work and practices of fee-charging McKenzie Friends are problematic. Even some good McKenzie Friends would do well to sharpen their business practices to serve the interests of their clients. Lucy noted the challenges posed by McKenzie Friends who ‘caution against trusting, believing or engaging with lawyers’, so that litigants are ‘primed with suspicion’. Although we saw little evidence of such behaviour in our study, we know that it exists. Recent research by Angela Melville (accessible here – subscription required) has identified problems with the combative and inflammatory tone struck by some McKenzie Friends on social media platforms, and we ourselves have seen social media accounts in which individual McKenzie Friends repeatedly denigrate the family justice system. Such approaches are profoundly unhelpful, potentially harming litigants’ prospects of successful conflict resolution and also doing reputational damage to McKenzie Friends as a group. Those McKenzie Friends who are keen to see the development of cohesive and respectable standards of practice would do well to consider measures that might position McKenzie Friends more clearly as useful contributors to the family justice system, rather than enemies of it, and marginalise the behaviour of some of their less constructive peers.

 

However, notwithstanding the outliers, as a group, it could be argued that paid McKenzie Friends represent the tamer end of the revolution in legal advice and services. This brings us to the main point of this blog. Even if they are sometimes problematic, McKenzie Friends are categorically not the lone cowboys of the unregulated legal advice arena. As such, we respectfully suggest that even Lucy’s ‘unashamedly… broad and unconventional definition of McKenzie Friends’ cannot explain ‘the risk and prevalence of actual bad experiences that are likely to be befalling litigants outside court’. The creep of unregulated legal advice is far more pervasive and insidious than any definition of McKenzie Friends could be stretched to cover.

 

The most obvious contenders for attention are the handful of for-profit, unregulated online legal series providers that currently deal with some 10-13% of those going through a divorce. (LSB, 2016). These online platforms largely deal with uncontested divorces and handle processes rather than disseminating advice, though there are nonetheless some concerns related to their business practices (see LSB 2016, chapter 4). More importantly, however, they rely on search engines to alert potential clients to their services and what this should alert us to is the high volume of individuals turning to the internet to find information about family disputes.

 

And what type of advice and information might they encounter? Online legal services are likely to represent the thin end of the wedge. Recent years have seen a proliferation of websites carrying information of potential relevance to those embroiled in family disputes. These websites are extremely varied in purpose, content and audience and some early research by Leanne Smith revealed that it is not uncommon for information to be misleading, inaccurate and out of date. Some searchers will happen upon misinformed but dogmatic news reports, or information from another jurisdiction, and only a minority will have the digital or research literacy skills to enable them to make judgements about good and bad sources of advice and information. (Those of us who teach know that even relatively intelligent and educated law students don’t always make the soundest possible judgements about which online sources are reliable and which aren’t). Moreover, some research from technologists and cognitive and behavioural psychologists is exploring whether a sort of ‘machine heuristic’ exists, leading people to attach greater credibility to information gleaned via a machine than to information gleaned elsewhere

 

One of the most commonly used categories of online information and support is likely to be the chat forums hosted by online communities of experience – think Mumsnet, Netmums and their like.  Many use discussion forums to glean information and seek advice and many more are willing to supply this information and advice – with or without the knowledge base to do so. A quick search on any given day will reveal a range of active discussion threads of relevance to a justiciable family problem. The responses range from eminently sensible to inflammatory (‘He is a wanker, end of’), to unrealistic (‘just ring the court and get a letter saying you can take them abroad’) and simply inaccurate. Of course, people have always sourced some advice and information informally from friends, relatives and colleagues with direct or vicarious experience of family breakdown and/or the family courts. In terms of understanding what’s changed we have much to learn about what role, if any, the crowdsourcing of information online plays in influencing perceptions and expectations of the family justice process. But there are reasons to believe that online communities of experience might be particularly influential. One reason is that they have the capacity to generate, rapidly, a mass of responses that lean in a particular direction (and given the shared interests and identities of those engaging, those responses are quite likely to vindicate an original poster’s position). The ‘availability heuristic’, a well-recognised phenomenon in behavioural psychology, would suggest that exposure to a mass of supporting opinions and stories is likely strongly to colour views on what is ‘right’ or ‘normal’. This is something that would merit multi-disciplinary research. There is also further research indicating that group and shared identities can operate in online discussion forums in ways that engender high levels of trust in the information shared within them.

 

Though the potential manifestation of such trends has yet to be explored in the context of online legal advice, it is not unreasonable to hypothesise that online sources might be the murky influence that is discerned lurking in the shadows by some legal professionals. Primed with information gleaned online, it is almost understandable that litigants will mistrust a lawyer who sits in front of them contradicting what they ‘know’.  The point here is that the work of fee-charging McKenzie Friends is the tip of an iceberg in a way that is not identified in our research report. It’s the tip of an ever-growing, ever-elusive iceberg of unregulated, unqualified information and advice consumption on the part of litigants. If the research report, limited in scope and revelation as it is, stimulates discussion and investigation of the full breadth of the challenges posed by the general ‘de-legalisation’ of family law advice, it will have been worthwhile.

 

Feature Pic by Christopher Dombres on Flickr (creative commons licence) – thanks!

 

Sauce for the goose and the standard of proof

Scales by Hittie Evie on Flickr (creative commons) - thanks!

Ooh. That rhymes. Anyway…

The Bar Standards Board (regulators for barristers) are conducting a consultation on whether or not the standard of proof for disciplining barristers should be the criminal standard (as it now is) or should change to the lower civil standard.

First, a recap : the criminal standard means that, just as in a criminal trial, a thing isn’t proved unless the judge (or jury) is satisfied so that it is sure (or beyond reasonable doubt) that the crime has been committed. The civil standard means that a thing is proved if the judge thinks it is more likely than not (i.e. 51% or over) that the thing in question happened.

My initial response was – “Hell no! Leave it as it is. This is our careers we’re talking about, people. V important.” Plus, thought I, all the other professions use the criminal standard, so its a no brainer.

Except, apparently, whilst I wasn’t looking almost all the other regulators have gone over to the civil standard, the sneaky rats. It’s just us and the vets appaz, out there on a limb with our “beyond reasonable doubt”. Getting away with badness and thumbing our noses at the regulators if they can’t prove a thing to the criminal standard. Or, quite rightly being found innocent of a bogus charge because there is insufficient evidence – depending on your perspective.

The consultation document is actually quite an interesting read and thoughtfully and accessibly put together. It is quite persuasive, and sets out the shift in mood /expectation about this over the years by both regulators and by judges who have considered the issue (although it has not directly been determined). You can read it here.

But what took me to the consultation document was not a burning desire to learn about the caselaw and history of standards of proof in regulatory tribunals (though goodness knows it is practically all I ever dream about*) – I went to read it because I wanted to write this post, and thought I’d better make sure I knew what I was on about. I didn’t as it happens (proof, if you needed it, that blogging is good for continuing professional development).

What had driven me to write this post was not a comparison with other professionals, but the jarring in my own head of my “Hell no!” reaction with the conversation often had on this and other family law blogs (and with afeared clients) about the appropriateness of the civil standard in family proceedings concerning children, particularly those involving adoption.

There are many who would argue (and have argued repeatedly on this blog) that it is wrong that the law allows the removal of children from their family forever when they have been convicted of nothing, and when it has not been proved beyond reasonable doubt that their parenting is harmful or risky. Those are respectable arguments, but they don’t in fact represent the law and there are perfectly reasonable arguments in the other direction.

Although I’ve always been ambivalent about it (because one sees the awful consequences when the civil standard DOES lead to injustice), I’ve been able to articulate the very good reasons for the adoption of the civil standard in these cases : there are sound public interest reasons for doing so. Whether or not one is protecting a victim of domestic abuse through injunction or a child at risk of harm the civil standard gives you a better chance of protecting the vulnerable, and as such is justifiable on public interest grounds. It would be awful if child were left in or returned to a dangerous home and subsequently harmed because even though it was more likely than not that a parent had caused harm it couldn’t be proved to the criminal standard. The complexity in family cases comes in where there is a countervailing risk – of depriving a child of his or her family (forever in some cases) – brothers, sisters, parents, aunties, grandparents – when it wasn’t necessary at all.

Of course the lower the standard the greater the risk of injustice to the person “on trial”, and in children cases the greater the risk of wrongful removal. But…

If the public interest in protecting vulnerable children from abuse or neglect by parents means that it is legitimate to “find” parents guilty of abuse even where no criminal charge has been brought, and even where the evidence is likely insufficient to secure a conviction, then it is difficult I think to argue that the public interest in protecting the public from rogue or incompetent barristers should not lead to a similar conclusion in relation to disciplinary proceedings for the bar. It’s my career, but it’s somebody’s child. And there is a limited impact on the public we are protecting if some barristers are wrongly found guilty of misconduct (save insofar as it narrows the pool of good lawyers by one and may put off others from joining or staying in the profession so narrowing the pool further in future).

Though it makes me highly anxious as a professional, I have to acknowledge that if anything the public interest arguments in respect of the civil standard in family courts are stronger than they are in relation to disciplinary proceedings. The BSB consultation paper asks the very good question :

…why [should] barristers, and in some circumstances solicitors… be accorded what might appear to be preferential treatment as compared to other professions practising in the England and Wales?

and makes the very good point :

…it is not necessarily in the public interest for barristers to be able to avoid a disciplinary sanction when it is more likely than not that they are guilty of professional misconduct but a Tribunal cannot be “sure” of this. This position is likely to be perceived by the public as working in the interests of the profession and not in the interests of the public or consumers.

For sure I’d feel better protected against spurious or malicious complaints if the standard were higher, but if its good enough for my clients, and good enough for social workers it’s difficult to say that the bar is somehow special and should be treated differently.

The alternative conclusion of course would be to agree with those who argue for a criminal standard in family cases, and to argue that all the other disciplinary / regulatory bodies have got it wrong. I know the injustice that can be caused in individual cases, but it cuts both ways.

The Webster family suffered a grave injustice – they were exonerated but it was too late for their children to be returned. But Ellie Butler suffered a grave injustice too – findings made on balance of probability that put her away from harm were later overturned at a rehearing and she was subsequently returned into the care of her parents, and was subsequently killed by her father (whose conviction for harming Ellie had been quashed). Even with the civil standard Ellie ended up dead. The criminal standard wouldn’t have saved her. And any trial lawyer knows that even the civil standard is not to be sniffed at – many allegations made in family courts fail for want of sufficiently cogent evidence. Whatever the standard used accuser must prove.

Cases like Ellie’s and the Websters are fortunately rare, but though this is no comfort for those rare cases where the system doesn’t work inevitably no system is perfect. Adoption of the criminal standard would most likely result in more children being exposed to harm than the civil standard does. Neither can prevent all harm and injustice. But my strong, instinctive reaction to the suggest that I, as an individual, might be condemned on a lower standard for the public good is a reminder of how hard this is to come to terms with on an individual level.

 

*this is not true

 

Feature pic : Scales by Hittie Evie on Flickr (creative commons) – thanks!

Bog standard toilet humour – no law

With Family Justice down the pan, I thought I ought to start thinking about my next career.

So… Welcome to Familoo – home of the Family Toilet Seat!

It appears that not only does everybody need a thneed, but they also need a familoo toilet seat.

I’m kidding of course. This is a website that someone sent me a link to, from an Australian toilet seat company. Fair dinkum.

I don’t like to wee on their bonfire, but I’ve already got one of these in my bathroom, and very good it is too. But I don’t think it is a toilet revolution as mine is some other brand (I’m PRETTY sure I’d have noticed if it was called FAMILOO!).

Those for whom a Familoo is a useful bathroom accessory will be only too alive however, of the pressing need for someone to invent a device that will stop small boys weeing on the floor / walls / behind the loo. I reckon if I can patent such a genius  thing I will be able to retire a very wealthy Familoo.

Anyway, I’d like to thank the company behind this website for providing some very entertaining, if entirely puerile, toilet-humour amusement during my few minutes of work avoidance today. I have particularly enjoyed creating imaginary answers such questions as :

  • What material is Familoo made from? (90% sugar and spice and all things nice, 10% stroppy mare)
  • Will the Familoo fit my toilet? (probably, although there was once an embarrassing suction related incident requiring the assistance of a nice fireman)
  • If I move can I take my Familoo with me? (of course, I am your virtual friend – you can find me on twitter wherever you and your toilet are : @familoo)
  • What if my Familoo is faulty? (Familoo is never wrong)
  • Does the Familoo fit blind fixing toilets? (No. I’m a lawyer not a plumber for goodness sakes.)

Right, toilet break over. Now back to the serious stuff…

Love from (the real) Familoo xxx