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!

 

Tip of the iceberg? You don’t say… the McKenzie Friend research

NOAAS National Ocean Service on Flickr

The research commissioned by the Bar Council in to fee paid McKenzie friends has been published today. In truth it contains few surprises, notwithstanding the Bar Council’s faintly bemused tone at the discovery that McKenzie Friends are McKenzie-ing mainly outside of courtrooms, where they are unregulated and unscrutinised and free to compete without the watchful eyes of a judge or disapproving lawyer upon them. Of course they are!

To those of us who pay attention to social media and what our clients and opponents tell us or let slip, the biggest “issue” with McKenzie Friends, is what goes on outside court. 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. And because such advice will often include cautions against trusting, believing or engaging with lawyers. Litigants come primed with suspicion.

There is plenty in the legal press already about this research report. You can read The Law Society Gazette here, or Barrister Magazine here. The former is said to be inaccurate by the lead researcher, the latter is not criticised by her – I agree that the Barrister Magazine piece is a useful potted summary of the research and its conclusions. In this post, rather than rehearsing all that, I want to offer some comments that have not been mentioned already and might otherwise not be aired.

Like the researchers, i would not want to condemn all McKenzie friends, some of whom are in fact an invaluable support to those who have nobody else to help them (whatever we think of the principle), and some of whom are indeed very experienced. But I have always been frank about my concerns as regards the absence of regulation of the activities of McKenzie Friends, because of the risk in any individual case that the McKenzie Friend selected will not turn out to be on of those invaluable ones, but will turn out to be positively dangerous or incompetent. This research doesn’t really allay those concerns any, not least because I don’t think it was focussing on areas where I see most risk for litigants.

The research is independent, but the reality is that the Bar Council will have commissioned it out of a concern that there were both access to justice issues AND issues for the profession. And it is to those twin purposes that will have shaped the framing of the brief.

It’s a shame in a way that the study was limited in the way it was, as a result I suspect of the Bar Council being (understandably) focussed on its own sphere of existence – the resulting study is open in saying that it was looking primariiy at on the role played by paid McKenzies in court, and in private law cases. Any fule could have told them that they were looking in the wrong place, just as we all said in response to the Judicial consultation that they were trying to regulate something that was mainly being done outside the Judges’ jurisdiction – and which was perfectly permissible in law as it was not a reserved legal activity – legal advice. Coming to court and sitting quietly in the open where we can spot someone being a bit of a pain or a wally – not our biggest problem. Not the biggest problem for anyone frankly. Sometimes very helpful.

There is in the response of the bar council a sort of weird slippage between McKenzie Friends doing McKenzie-ing (quiet support etc) and McKenzie friends exercising rights of audience. RoA is a whole different task which brings with it a whole different set of issues. There seems to be a prior assumption (not borne out by the research) that fee paid McKenzies would want to and were exercising RoA regularly, in some sort of project creep. In my experience it is often an exasperated judge who will grant RoA to a helpful McKenzie in order to achieve some semblance of clarity / progress – and not the other way around. The research bears this out – again no big surprise.

But it is not the bar’s advocacy toes that are at risk of being trodden on here – even those McKenzie friends are in court (paid or unpaid) rarely exercise rights of audience – and where they do this is usually because a court has decided it is likely to assist rather than hinder the individual case. No, it is our advisory toes that are being trodden on day in day out. But we haven’t noticed because we’ve got our bloody big clod hoppers on and are stamping around like the big beasts of the courtroom.

Litigants these days do their own legal research. They research the law, they research McKenzie Friends and yes, my friend, they research you and I. They choose in significant numbers to take advice from McKenzie Friends – sometimes paid, sometimes not. Litigants are most vulnerable to exploitation and bad advice long before they come into a court room. If this research is a good indicator many of them are more satisfied with their experience of McKenzie Friends than lawyers. We should reflect on that. And we should have enough humility to recognise that there may be some things McKenzies are doing as well as us or (gasp) that from the perspective of what some clients want and need, some may offer something we can’t (or won’t).

This research acknowledges frankly that it is likely to have produced a skewed and overly positive sample of McKenzies and their clients. The research makes the point that there are some good McKenzies out there. And it makes the point that in court things are perhaps not as bad as the hype. Most of the McKenzie clients reported satisfaction with the service and support provided – and in particular McKenzies come out well for client care. Legal professionals could, if they were wise, consider what lessons we might take from the fact that many (if not all) of those who have chosen this path, are happy with the outcome. That ought to tell us something about our client care as a profession (I say this whilst acknowledging of course that some of the more chummy approaches taken by McKenzies would not be compatible with appropriate professional boundaries / distance, and our duties to the court. I think that we can and should invest more energy into explaining better why a lawyer can’t be a “friend”, and help clients to understand our professional distance is a positive benefit, and not evidence that we don’t care or are simply money grabbing).

But what the report doesn’t (and doesn’t try to) convey, is the risk and prevalence of actual bad experiences that are likely to be befalling litigants outside court. That is a whole other research study. And it is for me where the real meat of it is (in saying this I’m not denying those who provide good help outside court.). For me, it ISN’T just about fee paid McKenzies – many of the good samaritan rogue / family justice crusader type McKenzies are (in my experience) NOT fee paid (or charge inflated “expenses” that they maintain are not fees at all). And they don’t operate just in private law field where there is no legal aid (the research only looked at private law). They operate too in the public law field where parents are entitled to legal aid. And they hold influence even over parents who are represented through social media and the internet and through networks of parents turned advisor/ campaigner (these McKenzies don’t have their own websites, they aren’t members of nascent “professional” bodies, and they operate through closed Facebook groups and private communication / word of mouth). I am unashamedly adopting a broad and unconventional definition of McKenzie Friends (Which technically is a term that only applies in court). Again, the numbers may not be great (although frankly it’s difficult to say – I could make a pretty long list of names myself), but that the problem exists is clear to those who care to look or listen to what parents are saying. Many of those parents however, do not view the McKenzies as the problem, but instead see it in the lawyers, the social workers, the system. And any negative outcome they have experienced is most likely to be interpreted as the inevitable result of the corrupt system than the result of acting on the advice received. Those cases make me very sad. They are lost opportunities – lost children – emblematic of the failure of the legal profession to make our case to the people we can help most.

And here’s the thing : in both fields (public and private law), a McKenzie Friend may be offering entirely lawful – but bad and unhelpful -“legal advice” alongside or instead of the instruction of a lawyer – suspected but unseen, and corroding the working relationship between a litigant and their own lawyer, let alone the other lawyers or professionals in the case. Difficult to deal with in individual cases, difficult to evidence, difficult to research. These are never going to pop up in a self-selecting sample.

Next time The Bar Council has a chunk of money burning a hole in their pocket I’d like to see them spend it on a research project about this issue (not holding my breath). And not one which self-selected the good guys*. But one which roots out the ones who are lurking in the shadows and messing up people’s cases. There may not be many, and they may not represent the typical – but they are there and they are dangerous,  And they are right under our noses if only we would bother to look. I foresee considerable methodological challenges with capturing this information and in finding a solution, but fortunately I am merely a lowly blogger and do not have the unenviable task of devising such a research project.

I hope I’ve accurately summarised the scope of this study, having put this post together after a long day at court and a long train journey with a patchy wifi signal. My area of interest really is in the stuff that hasn’t yet been looked at – I think the study is really valuable and hopefully will get the bar thinking about its “offer” (yucky jargon) – but I also think that it is not the whole picture. The study says the picture is mixed : indeed. But my own experience suggests that it is more complex and more varied than is represented in the sample that came forward for scrutiny. So we have a way to go before we really understand the risks and the benefits.

In the meantime the legal profession could focus on getting our message across more clearly, and on listening to what clients actually want from us. Our strength may be in our difference from the great unregulated – but that doesn’t mean we have nothing to learn.

 

*here again, I acknowledge the good guys but do not need to spend much time writing about them. I acknowledge also that the researchers tried to get a representative sample – but this was practically unachievable.

 

Feature Pic : NOAAS National Ocean Service on Flickr (creative commons licence – thanks!)

Oh and by the way, the General Election has messed up Family Court reform…

Have been meaning to write a short post observing that the Prison & Courts Bill, which contained draft proposals to deal with the vexed issue of direct cross examination of alleged victims of d.v. by their alleged perpetrators and enabling provisions to allow the online court reform programme to move forward, has been ditched in light of the election.

That is to say, it is no longer going to be considered in this Parliament, and we will have to wait and see whether the new Government (either a “stronger and stablerer” May Government or some other sort of Government) has the time or inclination to put this back on the table. Once can foresee that other priorities such as the “Great Repeal Bill” might take priority (much like disguised compliance which means the exact opposite of what it says, this would be a Bill that would repeal one thing and enact a million others into our law, but hey), but it’s difficult to tell what sort of space in the timetable will be left for other ongoing work. Other factors which increase the uncertainty are the increasingly frequent news articles speculating that our Lord Chancellor Liz Truss, who is of course responsible for this legislation, is not going to last much longer in that post.

So we will have to wait and see. But at best this means some delay in getting these reforms through. At worst it means they disappear into the long grass of Brexit.

For those who enjoy an exercise in futility you can read what I said about the Prison & Courts Bill when it was still a thing here, and what David Burrows said about it in a guest post here.