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.

Prison & Courts Bill – banning cross examination of victims?

I’d intended to post a speedy, pithy summary of what the new Bill says about the “prohibition on cross examination of victims in family courts”, as it has been described. As it happens however, actual cross examination of actual complainants, alleged perpetrators and third party witnesses has got in the way of that somewhat, and this post is therefore less immediate than I had hoped it would be.

But I still think it is a valuable exercise to summarise what the new Prison & Courts Bill actually proposes. It may not be the cure-all that one might suppose from the ministerial speeches and headlines. I’m not going to do a dry technical analysis, but I’m going to look at the shape of the proposals and their potential impact on real life proceedings and real life participants. I’ll skip over some points of detail.

Section 47 will work by making amendments to the Matrimonial and Family Proceedings Act 1984 (MFPA). The MFPA basically creates the Family Court and defines its powers. The proposed scheme is clearly modelled on equivalent rules in the criminal courts, but for reasons I will address, family court proceedings are a very very different scenario.

The Bill will introduce a ban on cross examination of a victim or alleged victim by the perpetrator in the following circumstances :

  • where the person to be cross examined is the (alleged) victim of an offence where there is either a conviction or outstanding charge (The offence in question has to be a specified offence (essentially most sorts of violent or child abuse offences)). OR
  • where the person to be cross examined is protected by an on notice injunction against the person who would be cross examining (for our purposes the definition of on-notice is wide enough not to be an issue by the time any cross examination happens)
  • (in these cases the (alleged) victim is also not permitted to cross examine directly

It will be immediately obvious that this is NOT a complete ban or even close. Those who work in the Family Court know that very often there is no charge or conviction, either because the victim has been too frightened to pursue a prosecution (it is often the alleged perpetrator who brings the matter to the family court, whilst the victim has been avoiding contact to keep themselves and child safe, because there is insufficient evidence to bring a charge, or because the police have not yet made a charging decision. There will also often be no protective injunction in place : again this might be because the victim is trying to keep safe by changing address and avoiding the perpetrator rather than upping the ante with an injunction, and is then located and brought to court, or because the violence is not current (though the fear may be) – many victims consider themselves sensibly to be safer if they let sleeping dogs lie. In cases where a charging decision is still awaited a catch 22 may arise, because the presence of bail conditions means the Legal Aid Agency may take the view that there is no basis for funding an application for an injunction (bail conditions = job done). These victims will not automatically be protected from cross examination.

As with the criminal provisions, there is a second, discretionary power to bar cross examination where the court thinks that the quality of the (alleged) victim’s evidence is likely to be diminished or where they would be likely to suffer significant distress through the cross examination. In the case of significant distress the court has to consider the wishes of the witness, the behaviour of the (alleged) perpetrator in the proceedings or generally, and any findings in other proceedings  This discretionary category will certainly catch many more cases – but not all of them.

This is most definitely not a ban on all cross examination of (alleged) victims by their (alleged) perpetrators as has been trumpeted.

Where the provisions of s47 apply, the court is required to give the unrepresented person a change to instruct their own lawyer, but if they do not must consider whether it is necessary in the interests of justice to make an order appointing a lawyer to conduct the cross examination on their behalf.

Again, this is not in fact as clear cut as at first appears. The court has first to consider whether it is necessary to appoint a lawyer. Necessary has a clear meaning in other contexts in family law (“necessary means necessary”) and the bar is quite high. The court is probably going to have to consider if some other bodge can be found here (A mckenzie friend, a legal adviser, the judge rolling up his or her sleeves) before concluding that it is necessary.

Although s 47 now refers to the appointment of a lawyer who will “represent the interests of the party” through the cross examination, they are not in any meaningful sense to be considered as “represented”. The lawyer, if and when appointed, is not answerable to the represented party, but the lawyer must conduct the cross examination in their best interests. The accused is not represented throughout the proceedings, does not receive advice or assistance in knowing what directions to seek to ensure that the advocate, when appointed, will have sufficient materials to hand to make a good fist of it. There is a very big difference.

This matters for both parties. It matters for a litigant in person who is responding to allegations of violence. This is not a cure for the absence of legal aid, although it is probably better than nothing. And it matters for the genuine victim of domestic abuse, who will (I would suggest) not be afforded anything like complete protection against intimidation or abusive behaviour by a perpetrator.

Because unlike criminal proceedings where a victim of abuse is simply a witness, who shows up, gives her evidence and goes – the parties in family proceedings are parties throughout. They are thrown together at court – in queues to go through the security arch, in the lift, in corridors, in the cafe over the road – and in the court room itself. Anyone who has dealt with this work knows that these provisions do not eliminate victim intimidation because victim and perpetrator are likely to be in close physical proximity at hearing after hearing, sometimes for hours at a time. And lawyers who remember the days when each party would often have a lawyer will know that it doesn’t take much to give a frightened witness the collywobbles. A look, a stare, a muttered phrase under ones breath when passing, deliberately sitting opposite, bringing the mob to court, a surreptitious throat slitting motion when nobody is looking…It is hard to shield a client when both parties are represented throughout, impossible where one is not. Time spent in cross examination is but a small portion of the time spent at court.

These changes are not unwelcome, but I do not think that they will cure the identified mischief they were intended to, namely the prevention of intimidation of the victims of domestic violence through family court proceedings. Neither do they cure the less well acknowledged but equally significant mischief that arises from the withdrawal of legal aid for those accused of domestic abuse in 2013, although they do place both parties in a marginally better position than they would be without.

There is a further emerging problem in that the MoJ are consulting on the proposed slashing of the rates paid for this work in the criminal courts, no doubt with the intention of reducing them across the board when additional costs begin to be incurred in family cases.

You can read the Bill on the Parliament website here.

 

Core Doody 5 – the sequel

The Bar Standards Board have (finally) issued some new guidance on Core Duty 5 and its application to social media. That’s the bit of the Code of Conduct that tells us barristers not to behave like pillocks, in case you are unfamiliar with it.

For those of you wondering about the title, it’s a dull topic, so – say it in your best fake American accent and watch this clip from Wreck it Ralph. In fact, if at any stage you find yourself lapsing into a coma during the reading of this post, play it again…

It wasn’t very long ago that I observed that there was a notable absence of specific guidance about conduct on social media. In fact, looking back, my post on the topic : Debretts* guide to social media for lawyers was published as recently as 5 February, and the new guidance has a “valid from” date of 17 February, so it was presumably published shortly after my original post. There doesn’t seem to have been any announcement of its publication, although it is just possible* that there has been some BSB update email that I have accidentally left in my spam folder and not read**.

You can read the guidance here : BSB guidance for barristers using social media.

What does it say?

The headline is : Core Duty 5 (duty not to behave in a way likely to diminish public trust and confidence in the profession) applies AT ALL TIMES, including on social media – in both your personal and private capacities “since the inherently public nature of the internet means that anything you publish online may be read by anyone and could be linked back to your status as a barrister“. This much should be clear from a sensible reading of the Code of Conduct itself but it bears re-stating.

What else :

  • Comments designed to demean or insult are likely to diminish public trust and confidence in the profession
  • It is also advisable to avoid getting drawn into heated debates or arguments. Such behaviour could compromise the requirements for barristers to act with honesty and integrity (CD3) and not to unlawfully discriminate against any person (CD8)
  • You should always take care to consider the content and tone of what you are posting or sharing. Comments that you reasonably consider to be in good taste may be considered distasteful or offensive by others.

There is also some fairly obvious guidance about client confidentiality and geotagging, and a reminder that :

When you are using social media, you should bear this guidance in mind at all times. This guidance will be considered by the BSB in any action it takes over concerns about social media use. If you are the subject of a complaint concerning your use of social media, we will investigate the matter carefully and in line with the process explained on our website.

And that’s it folks.

I have to say that I think the guidance is somewhat over-anxious. I am very alive to the need for members of the bar to conduct themselves appropriately online (as well as offline), but I wonder if it is striking quite the right balance to suggest that we should avoid getting drawn into heated debates or arguments. One might rhetorically ask what is the point of twitter without heated debates and arguments? The point is not the fact of the argument, it is the manner in which it is conducted. It cannot be right that barristers should be prohibited from expressing strongly held opinions in strongly worded terms. But there is of course a limit to what is acceptable, either for a barrister or for joe public. It is quite possible to be appropriately involved in a heated argument on twitter without offending CD3 (honesty and integrity) and without discriminating (CD8). I would prefer this guidance to say simply that in any communication online a barrister should act with honesty and integrity and should not act in a way which is discriminatory. Those quite unacceptable behaviours have nothing to do with the vast majority of heated debates. Tweeting things which are knowingly untrue, or which are misleading might well amount to a breach of CD3. Tweeting discriminatory remarks would breach CD8. Either could take place within the context of an argument or debate or gratuitiously and without prompting. The BSB should not be trying to shut down debate, it should be regulating offending behaviour. I acknowledge however that it is in the course of heated debate and argument, particularly fast paced twitter frenzies, that errors of judgment are most likely to be made. If that was what the BSB were driving at they could, respectfully, have found better wording.

I struggle somewhat with the insinuation in the last bullet that material that is considered offensive by some might offend against CD5 even where the barrister “reasonably” considers it appropriate. I don’t think the BSB should be in the business of policing good taste. One can say the most anodyne things and cause offence in the twitterverse. This is not misconduct. I don’t subscribe to the “call everyone a snowflake” school of thought which says we should be gratuitously offensive because we can, but the focus needs to be on “the public” (i.e. the notional public) on whatever is the modern day equivalent of the Clapham Omnibus, not on the oversensitive individual who is offended by everything. Some of the very best legal bloggers say things that are controversial or that are offensive to some. They are fiercely independent and articulate their positions with care and with skill, but with great force. That some will disagree or be offended, or that their posts will spark the most vehement of debates is no marker of misconduct. It is something to be proud of.

And yes, I appreciate that a blog post that has a toilet humour title is winning no prizes in the serious public debate category…

 

* highly likely

** deleted