A little knowledge is a dangerous thing…

A new McKenzie Friend website has been launched this week. It is in my view an excellent illustration of the truth of the proposition that a little knowledge is a dangerous thing, whether that knowledge is wielded by a law student or a McKenzie friend of some other flavour.

There is an increasing trend amongst law students to set themselves up as McKenzie Friends, sometimes for free, but now also on a paid for basis.

There is an increasing trend amongst the Law Schools of Higher Education establishments to devise, offer or support novel schemes that purport to “offer” law students who attend their establishment some better experience, some more shiny star to put on their CV than the institutions they are competing so fiercely with.

It is all deeply deeply concerning. My concern is firstly for the litigants who may be reliant on such services, but also for the law students who may at best gain less valuable experience or skills than in more traditional, better supervised schemes and at worst may actively damage their career prospects. My concern also extends to the litigants who may be involved in cases where another party is being assisted by these outfits. And of course there is undoubtedly an impact on the regulated providers of legal services who are now competing with providers who claim or appear to be cheaper or better value for money (whether such claims or appearances are borne out is highly dubious).

Before I set out my particular concerns about this new website, I want to say three things :

Firstly, not all University / College run schemes are bad, although I do worry about the corrosive impact of strong commercial incentive to provide experience as a selling point which may be in tension with the interests of justice and the best interests of litigants. I think that there is a drive to let law students loose on things we would not so long ago never have dreamt of letting them do at all let alone do unsupervised. When I was involved in setting up the pro bono scheme run by practising lawyers in Bristol my line in the sand was “no law students”.

And secondly, not all McKenzie friends are bad news. The problem for me is that a consumer has no way of differentiating between the good eggs and the rotten ones.

And thirdly, the combination of an enthusiastic-I’m-the-next-hot-shot-and-I’ve-got-something-to-prove law student with McKenzie-ing is somewhat combustible. I sympathise with law students, who have to  pack their CVs with ever more and more impressive CV baubles but it’s a heady and dangerous mix. The young lawyer to whom I shall shortly introduce you rates legal experience by reference to how exciting it is :

“Most forms of legal experience provided by the profession is [sic] mundane and does not expose aspiring barristers and solicitors to real practice. [sic]”

Gosh is he in for a shock if he ever gets to a training contract! Being a lawyer is frequently boring. Get over yourselves law students. And most legal experience does not expose aspiring lawyers to real practice because they aren’t ready, because they don’t yet know enough law or ethics. And because they have not yet learnt they do not know it all.

So, what’s the problem with this website?

The site acts as a hub for paid for McKenzie Friends to offer their services to the public. It is

“a platform created to help and aid unrepresented litigants in person access practical, moral and legal assistance for pending court proceedings”

(If I were being smarmy I would observe how great it is that this service will not just HELP but will also AID, and that it will both HELP and AID that particular subset of litigants in person who are ALSO unrepresented. And then I’d note the especial drafting skills of someone who can manage to squeeze two entirely superfluous words into a single sentence. But I’m not smarmy. And I’m not even going to wonder about what “moral” guidance might entail…)

McKenzie Friends Marketplace will act, says the website, a “quasi-regulator” to ensure everything is tickety boo. A quasi-regulator is a meaningless term designed to make consumers feel safer without providing actual regulation to actually protect them. However, the site will impose a fee cap, and demands that McKenzies must communicate solely through the platform provided by the website, no doubt in part to protect the revenue stream of those behind the site (a juicy 10% of all fees). The fee cap, I should mention, is set at a rate that is probably in many cases higher than legal aid rates paid to actual lawyers giving actual legal advice based on actual experience and actual law. Law students undercutting their own future selves is simply a stroke of economic genius isn’t it? More importantly, far from being in the interests of consumers, it is potentially poor value for money.

 

The site is set up by a 19 year old law student, a Mr Matcham. You can read his CV here. Mr Matcham’s website does not display a good grasp of the law. I wouldn’t expect a law student to have a good grasp of the law. But I would expect the Director of a company offering a commercial service in the legal sector to have a good grasp of the law and Mr Matcham is the Company Director. Of a company that didn’t seem to realise it is an offence not to publish information like company number and registered address in accessible format on the site (it appears that this has been partially rectified since I first started drafting this post). And that doesn’t seem to realise it is mandatory to register with the Information Commissioner’s Office as a data controller if holding the date of private individuals (I checked this morning, the company is not showing registered). This is not a good start. Others who are more au fait with the Money Laundering Regulations may know whether there are any difficulties in the website holding client money. Perhaps, perhaps not. There are certainly some consumer risks and some risks for the law students who are also vulnerable.

McKenzies who wish to benefit from being listed on this website (which so far appears to be precisely none) are required to obtain professional indemnity insurance (or in some places some less specific form of insurance). Others who know more about professional negligence and professional indemnity insurance than I have observed that it is difficult to secure valid indemnity insurance that will bite in cases of substandard service if one cannot easily identify the standard or duty of care in respect of which a tortious liability would arise. I have always hitherto understood that the only likely claim a poor consumer would have against a McKenzie Friend would be in contract. So a lot depends on the terms of the contract. You can read Nearly Legal’s blog about this here : BPP, fee charging McKenzie friends, and errors of judgment, and the twitter exchanges are worth looking at too.

Except there isn’t a contract on this website. Not that relates to the quality of services to be provided by the McKenzie to the litigant in person, which the terms and conditions state the site is not responsible for. It is a term of the contract between McKenzie friends using the marketplace and the site itself, that McKenzies must sign up to a “Code of Conduct”. However, there is, as far as I can see no written contract between the McKenzie and client with terms incorporating a requirement to comply with that “Code of Conduct” (assuming always that the code is in any sense meaningful in the first place). I’m no contract lawyer, but my rudimentary skillz suggest this is pretty poor protection for a consumer and insurance is unlikely to be a cure all.

It’s also worth looking at the “Code of Conduct”. This is both confused and confusing. Below are a few illustrative examples :

“if….McKenzie Friend Marketplace…determines….that a breach of the code of conduct amounts to a criminal or regulatory breach it reserves the right to report such a breach to the relevant authorities…”

But but but but….there ARE NO REGULATION APPLICABLE TO MCKENZIE FRIENDS. THERE ARE NO REGULATORS TO REPORT TO.

“comply with all requirements set out by the Courts of England and Wales”

I think this may be intended to refer to the McKenzie friend Guidance. But these aren’t “requirements” and if it does refer to the guidance, why doesn’t it just say “follow the guidance”? And what does it add for this outfit to say that a McKenzie must follow guidance they must already follow? And how do they propose to police a failure to follow it?

“Communicate using the [marketplace] messaging system only, ensuring that all communications are strictly confidential and remain so.”

So firstly, communicate using a messaging system that will be holding confidential data without registering with the Information Commissioner (so far at any rate)? And secondly – nowhere is there requirement that a McKenzie to contract with a client to keep things confidential.

“Obtain sufficient insurance…this will most likely be in the form of professional indemnity insurance”

What IS “sufficient insurance”? Why isn’t it specified? What does “most likely” mean? Does it mean we don’t really know and haven’t thought it through yet? There are no real tangible standards in this document that the McKenzie friend could be properly judged against either by a court or an insurer.

The code of conduct also oddly attempts to restrict a McKenzie from doing things where there is no legal prohibition on the activity, such as carrying out work where the litigant is abroad (not in relation to foreign law or foreign proceedings, just if the litigant happens to be physically abroad), and prohibiting a McKenzie assisting both parties in a case for reasons of conflict, saying there is a “duty” not to act in a situation of conflict. This is just ridiculous – there is no duty in tort or on any other basis BECAUSE A MCKENZIE IS UNREGULATED. A McKenzie friend can contract on any basis they like, subject to the usual consumer protection regulations and providing they do not stray into carrying out regulated legal services. A court may restrict their activities in the court room, but has no jurisdiction over their conduct outside court.

These are just some illustrations of the unsatisfactory nature of the “code of conduct”, and that is leaving aside the lack of clarity as to how the code will actually be enforced in practice, including how complaints of breach will be resolved. The T & Cs suggest that the Marketplace will have effectively a right of veto on passing on client monies if the client is dissatisfied. But it would all be far simpler to require a McKenzie to offer specified protective contractual terms to any client. I say this as someone who is not an expert in this field of law – I certainly wouldn’t set up a venture of this sort without checking it out through someone who was. I am pretty confident that in this case that hasn’t happened and that it is all a recipe for disaster. I am however, prepared to acknowledge I may have got some aspects of the law outside my specialist field wrong. But I’m not the one launching the website.

And finally, there is a Guidebook for law students or those new to McKenzie-ing. It doesn’t adequately spell out the position vis a vis reserved legal activities (for example what is restricted, what is conduct of litigation), or holding out or social media marketing and advertising – and doesn’t link to the professional guidance for the bar / solicitors about these issues, which might be very helpful for any law student not wanting to mess up their career before they get off the starting blocks (if not directly applicable). It offers no guidance for law students about what to do if they are out of their depth or how to know when this is the case.

It is really rather concerning in light of all this that both BPP and Westminster University (where Mr Matcham is a student) are said to be supporting this project (see The Gazette here, based upon a blog by BPP itself here). At the time of writing there has been radio silence from BPP and Westminster in response to the flags raised by lawyers on twitter. Mr Matcham himself has engaged, proposing that @NearlyLegal should meet him for a chat to resolve issues rather than responding to legitimate concern raised on a public platform.

More worrying still is the strange imprecision of claims about judicial and other support :

“he further found collaborative support of universities, academics, barristers, solicitors and charities from across the country, which has added to the collective credibility and experience of McKenzie Friends Marketplace.” 

The page goes on to say that :

“to assist those new to acting as a McKenzie Friend, the marketplace aims to provide a training programme with the assistance of one of its supporting universities in London. The program will provide an abundance of information surrounding the court….”

But other than a BPP logo at the foot of the webpage it is entirely unclear who these institutions (2 universities in London) and individuals are.

There has been some probing, discussion and challenge in respect of this site on twitter – so far BPP and the University of Westminster have not responded to requests for clarification (but see below). Mr Matcham has briefly engaged with @nearlylegal but seems now to have taken his bat and ball home without providing any answers to perfectly legitimate questions.

If it is the case that Westminster have supported this project I think they have done their student a grave disservice. Both he and they look very foolish. It may be that some of the issues I’ve flagged will be remedied in coming months but that this should have been launched in such a state at all is a matter of great concern.

One of the important things for any lawyer to know and learn (especially but not exclusively a newbie) is the limits of their own experience, skill and knowledge. Professional humility is an asset, an essential skill in itself – part of the good judgment that makes a good lawyer is to know when you are out of your depth.

Whatever the position with respect to Westminster, at least one Institution training tomorrow’s lawyers seems not to appreciate that skill, as it is encouraging law students to have a crack at anything with no supervision and no support (apart from possibly some vague intention to offer some training).  Good quality legal training should not be a matter of sink or swim schemes. Shame on them for exposing law students and litigants to risk.

Update : As I was about to press publish on this post I noticed a reply from University of Westminster, which does not reassure me at all – its a pretty hopeless sort of “support” that allows this shambles to be launched, and a matter of grave concern that the student behind it would imply the formal supported by Westminster in a way which they now seem to disavow. BPP certainly seem to have thought that it was “supported” by Westminster. Where can they have got that idea from?

If there are significant updates following publication of this blog I will do my best to update it as soon as possible after they come to my attention.

Child Protection Conference III – Consolidation

The Transparency Project is pleased to offer its support for the third multi-disciplinary Child Protection Conference to be held at the University of the West of England on June 9th.

Previous events have asked the questions – is the child protection system fit for purpose? And if not, what can we do about it?

The event of June 9th will look at ‘consolidation’ – what have we been able to achieve since our first event in 2015? What more do we need to do?

Speakers will include Dr Lauren Devine, Lucy Reed, Surviving Safeguarding and Sarah Phillimore.

Please visit the Transparency Project site for more details about timetable and speakers.

Tickets are £32.45 to cover catering, printing costs and the EventBrite fee.

There will be 10 FREE tickets available for those in financial hardship, please contact info@transparencyproject.org.uk

Any profit made from the event will be donated to the Transparency Project

PLEASE READ THE GROUND RULES BEFORE BUYING YOUR TICKET. PURCHASE OF A TICKET WILL BE TAKEN TO MEAN YOU HAVE READ AND AGREE TO ABIDE BY THE GROUND RULES

You can buy your ticket via Eventbrite here.

Guest post : Prisons and courts bill: cross-examination of complainant witnesses

This is a guest post written by David Burrows.

 

Quality of evidence of domestic violence complainants

 

Thanks to pressure from a variety of sources including Women’s Aid, The Guardian and Sir James Munby P the Lord Chancellor, Liz Truss, has incorporated into her recently published Prisons and Courts Bill – amongst a varied legal mixture of provisions, including those aimed at making prison nastier for those sent there and cheaper car insurance (with the capping of whip-lash injury claims) comes measures in family courts to bolster protection of complainants to domestic violence. The Ministry of Justice press release says that ‘quizzing’ (their word for cross-examination) of complainants by their alleged attackers is to stop:

 

The government is giving courts the power to put an end to domestic violence victims being quizzed by their attackers in the family courts, calling time on what the Justice Secretary has described as a ‘humiliating and appalling’ practice. This follows an urgent review she commissioned last month.

 

The bill has had its first reading, but no date has yet been fixed for further progress. Clause 47 inserts a number of amendments into an existing family law statute, Matrimonial and Family Proceedings Act 1984, as proposed sections 31Q-31X. The aim is to deal with cross-examination of a domestic violence complainant (A) by an unrepresented defendant (B). In law, if A makes allegations against him (mostly B is male, but not always), B has the right to cross-examine A about what she has told the court about him. In these circumstances there are many in A’s position who find that they are re-living the abusive situation; and this is precisely what the court hearing is designed to get her away from.

 

Youth Justice and Criminal Evidence Act 1999

 

Clause 47 has many similarities with the existing provisions of Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’); though any reference to YJCEA 1999 involves taking account of qualifications which apply to criminal proceedings but not to family cases:

 

  • A is a witness, and always has a prosecution legal representative dealing with the case; whereas in family proceedings she is both party – the person bringing the application – and a main (perhaps the only) witness;
  • The standard of proof against B is beyond reasonable doubt, whereas in family proceedings it is to the civil – more probable than not – standard; and
  • In a criminal case there is a variety of ‘special measures’ available to the court (YJCEA 1999 Part 2; Evidence in family proceedings Ch 8 Pt 2), which are not available in the same way to family courts and are not referred to in this bill.

 

Reference to ‘special measures’ recalls that the Ministry of Justice thinking on family law reform in this area is not joined up. ‘Special measures’ have been on the family law reform agenda for nearly three years: since Sir James Munby P set up a Vulnerable Witnesses and Children Working Group (‘VWCWG’) in late Spring 2014. That came up with draft rules which included ‘special measures’ as in criminal proceedings; but I assume they are snagged on a resources barbed wire fence.

 

So now, in separate statutory provisions in cl 47 of the new bill, cross examination etc – which will require its own procedure rules – is being dealt with in isolation from the Working Group recommendations (some of which will need redrafting if this bill is enacted). Separately, again, Ministry of Justice has published a modest draft practice direction which has been drafted without regard to what is in the bill.

 

From the point of view of the parties to proceedings the important provisions of this bill are:

 

  • The provisions for exclusion of cross-examination of A by B acting in person (MFPA 1984 ss 31R, 31S and 31T)
  • Alternatives to cross-examination by B in person which the court can order (s 31V(5): akin to YJCEA 1999 s 38(4): appointment of an advocate to cross-examine for the court)
  • Funding for s 31V cross-examination at s 31V(6).

 

The Prison and Courts Bill

 

The proposed reforms start with two provisions – s 31R which prevents a person in B’s position, who has been prosecuted for a serious offence against A – the specific offences are yet to be defined – may not cross-examine a victim of that offence (s 31R(1)), balanced against a prohibition on a victim cross-examining B (s 31R(2)). Similar prohibitions apply in relation to an injunction order which has been made by the court and on notice to B (s 31S(1) and (2)).

 

Thus ss 31R and 31S apply where the court is able to take action because another court has previously made findings against B – in criminal or injunction proceedings – so another judge need not re-invent that wheel. Another judge or a jury have made findings against B by which the second court is bound.

 

Section 31T is the central section of the reform proposals. It grapples with the question of what happens in relation to a witness whose evidence may be affected by their ‘significant distress’ at being cross-examined by B. A Ministry of Justice analysis of the subject said at para 6.1:

 

Judicial interviewees… felt that the ‘magic wand’ would be legislating for public funding for an advocate to act as a cross-examiner. This advocate would be able to be partisan, on the side of [B], and might only undertake the cross-examination. This would not advantage [B acting] in person by providing them with full case representation, and would also minimise the public funds required for this provision. It would enable [A] to be examined effectively by an advocate who could apply more scrutiny than an impartial judge whilst protecting [A] from being directly cross-examined by their alleged perpetrator.

 

Section 31T enables ‘a party to the proceedings’ to apply for a direction, or on the court suggesting that such a direction should be considered (s 31T(1)) so that B does not cross-examine A directly. The conditions for an application depend on the court considering either that a witness’s evidence will be ‘diminished’ (s 31T(3)) or that that witness will be significantly distressed (s 31T(4)). In both cases the court must decide whether, if the direction is given then the ‘quality [of a witness’s] evidence’ will be improved.

 

Avoidance of cross-examination of a complainant by defendant in person

 

The proposed s 31V deals with ‘alternatives to cross-examination in person’: that is where orders under ss 31R, 31S or 31T apply; and where the court considers there is no satisfactory alternative to cross-examination by B (s 31V(2)). In provisions which precisely replicate YJCEA 1999 s 38 the court must invite B to appoint an advocate (for which he will only rarely have legal aid). If B cannot appoint his own advocate the court must consider whether it should do so (s 31V(5): exactly as in YJCEA 1999 s 38(4)). The court advocate (C) appointed ‘represents the interests’ of B, but – according to s 31V(7) (as with YJCEA 1999 s 38(5)) – C ‘is not responsible to’ B.

 

In YJCEA 1999 s 40, payment for such advocate is guaranteed by statute. Payment for C under s 31W is left to regulations (to be made under s 31X), which can – of course – be changed or revoked much more easily that a statute.

 

Rules governing appointment and other issues arising from the bill will be governed by Family Procedure Rules 2010 (and see provisions in Criminal Procedure Rules 2015 Part 23). It is to be hoped that these new rules will be synchronised with what is going on with rules in relation to (1) other vulnerable witnesses (eg witnesses suffering from an incapacity in (say) children proceedings: now the remit of the VWCWG already mentioned); and the separate issues of (2) children’s evidence and (3) of their views and other participation in children proceedings. There are cross-overs between each subject; but they are fundamentally separate evidential issues.