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!)

We don’t need no Ed-ew-ca-shun

Earlier this week I spent a day on a Court of Protection course. Just as we were all entering a post lunch semi-vegative state, up strode Wall LJ to the podium. He is both President of the Family Division and of the Court of Protection. Readers of this blog may find his brief address interesting. I don't have a complete note of it, but I scribbled as furiously and as accurately as I could, leaving out the bits I wasn't madly interested in.

He began with an observational joke: that there are about ten years of work for the legal profession in every new act of parliament passed. He was talking about the Mental Capacity Act 2005, but I was thinking about the LASPO bill and what legal challenges may radiate from it (judicial reviews, funding appeals...).

I feel, he said, "Munby vulnerable" (picking up on a phrase coined in an earlier lecture to describe a vulnerable individual who does not lack capacity per se but whose will is overborne by external circumstances). Don't we all. Don't we all.

And so it began. Jokes over, he got down to it (some paraphrasing):

"I encourage everyone who sits in the Court of Protection to publish their judgments on BAILII. I acknowledge it involves a great deal of work to correct and anonymise judgments but the benefit to the profession is huge. I am a great believer in the court sitting where it can in public. It is not an instinctive reaction from a Family Division Judge or in relation to matters which are essentially private. There is an advantage to the public to see how very difficult and sensitive cases are handled and the care that is gien. It doesn't mean the parties have to be exposed to the full glare of publicity. I have sat in open court with the parties anonymised where it is a question of life and death. The press are very good at not doorstepping and people do remain anonymous."

He went on to talk about the benefits of the CoP sitting locally so that justice could be done locally. He wanted to encourage people to participate in proceedings. That, he said, makes good sense where there is an unpalatable decision to be made. ...

"I am irritated when those who criticise the Court of Protection and Family Justice System say experts are hired guns who say the payer dictates what they should say. That is a canard.

In RP v Notts CC a particular McKenzie friend alleged that a solicitor had forged all the documents in his file. In that case the expert was a joint instruction by the Local Authority and the patient. It was suggested that the report was purely for the benefit of the LA, said what the LA wanted and that the expert had deliberately falsified. I tried in my judgment to give a strong assessment of my views of the particular opinion set out on behalf of the person without noticeable effect. In my view the work done by those in the Court of Protection is done in good faith and designed so far as it can to assist P (the subject of proceedings). The way we treat people unable to make decisions is a hallmark of the system."

The McKenzie friend in RP v Notts was of course John Hemming MP. You can read the judgment here.

Legal Lookalikes

There are a growing number of quasi-legal services out there for litigants in person involved in family proceedings, and it is no surprise that many of them are advertised via the internet. I come across them increasingly frequently and they come in varying degrees of professionalism: from the ramshackle campaigning group with a few seasoned volunteers who act as McKenzies to the more savvy and commercially minded outfit with a slick website and a price tag.

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Today I came across this one: Family Law Decisions. It's a professional looking and streamlined website and I have no reason to think they do not match up to the promises set out there, or that they mislead in any way. But there are key differences between what you can expect from a non-legal support service of this kind and from a lawyer or law firm.

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Services like these tread very close to the dividing line between non-legal advice and support on the one hand, and legal advice and representation on the other. There are risks in my view, of obtaining legal services from non-lawyers. And when one scrutinises this and other similar services this is at heart what is offered. First hand experience does not necessarily equip one to provide impartial and legally sound advice. Emotional over-involvement can make for poor judgment: empathy is intoxicating for both client and adviser.

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Family Law Decisions website offers the following services:

  • Guidance on options
  • McKenzie friend in Court
  • Drafting documents (identified as pleadings, skeleton arguments, submissions)
  • Lay advocacy
  • Advice on procedure and law [my italics]

Wait a second: didn't it take me three years of postgraduate training and years of on the job practise to get good at just those things? That someone would hold themselves out as competent in the skills listed above without any formal training makes me a teensy bit anxious. Without a shadow of a doubt, had I tried to carry out my job without undergoing training and shadowing (pupillage) I would have made a right old b*lls up of it, to use the vernacular.

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Family Law Decisions is not unique in packaging itself in this way, as a range of services offered by non-lawyers, but I use it as an example. For the provision of these services they charge £40 per hour. Nice work if you can get it I say: it compares quite favourably with the rates of pay for legal representation by qualified lawyers on legal aid.

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Does it matter if the person helping you with your case  is not a lawyer? Perhaps. There is a fine line here. Under the Legal Services Act 2007 it is an offence to carry out reserved legal activities unless you are authorised or exempt. The conduct of litigation and exercise of rights of audience are so reserved. But, under the Act there is no regulation of the provision of the services listed above (they don't seem to fall into the definition of 'conduct of litigation') and it is not an offence to provide them (Where a judge gives a McKenzie a right of audience in a particular case they are exempt). So there is no legal obstacle to say Family Law Decisions should not operate in this way on an unregulated basis -i.e. without scrutiny from the Law Society, Bar Council, LSB, Ombudsman - nobody.

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I'm not knocking the valuable assistance McKenzies provide many who cannot afford a lawyer or who are ineligible for legal aid. But if you can pay £40 per hour for unqualified advice, unqualified representation (which might not be permitted on the day) and for the drafting of legal submissions and other documents by unqualified persons well - why not spend that £40 an hour on proper legal representation?

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The answer for some lies in their lack of faith in the legal profession - steer clear of lawyers at all costs, they are crooks (or so it goes). But think about it: If your solicitor or barrister provides an inadequate professional service or is negligent you can pursue that via a claim, safe in the knowledge that their mandatory professional indemnity insurance will not leave you high and dry and / or via the relevant regulator. What happens if your unqualified lay representative, adviser or draftsperson messes up? Yep, have fun with pursuing redress there.

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And think about this.  Family Law Decisions says in its FAQ section that:

I want to limit or stop the other parent spending time with our children, will you help me?

No (generally). We passionately believe in doing what is best for children. Research supports our view that shared parenting or near is best for children. Unless there are proven or likely to be proven risks of harm to children we will not assist in limiting or stopping children's time with another parent. See our Children page for further explanation of shared parenting.

All fine and dandy - such a policy is their prerogative and it is clearly set out on their website for all to see. So fine and dandy - if you happen to share that ethos. And if you can persuade them of the risks of harm to the children. What if they don't like the cut of your jib or just don't believe you? What if you decide half way through a case that you can no longer support shared parenting for your child  - will they leave you high and dry? There is no cab rank rule to stop them picking the cases they fancy and the section 188 Legal Services Act 2007 duty to the court to act with independence in the interests of justice does not apply. No legal training and no ethical training either. None of which means they will act in any way inappropriately, but the point is that you have no safeguards to ensure that they do. If you are happy to rely on a few testimonials that's your risk to take.

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The positive potential is for a client whose case fits well with the ethos of the organisation, to enjoy a wholly supportive experience from people who will go that extra mile to support the principle in question, where solicitors with an eye on questions of cost benefit and means / merits tests would wave goodbye. But there is limited legal protection for you if your experience is less than satisfactory.

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Lest there be any misunderstanding, I'm not being critical of the service provided by this particular organisation, but it is important to think before engaging the services of non-lawyers - especially if this is on a 'paid for' basis - about the reduced protection and lack of formal training and regulation may mean. It might look like a cheap way of achieving an approximation of legal advice and representation, but as outlined above it is in some respects very very different.

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Be aware that if you are engaging an organisation with an agenda, such as the agenda for shared parenting referred to by Family Law Decisions, there is a risk that your interests as client may be subjugated to the pursuit of the agenda. And whilst many McKenzies are undoubtedly experienced, articulate, and forceful negotiators, I would be wondering if at £40 p/h I was paying for the provision of a professional service or a campaign levy.

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I know that there are many litigants out there who have had or expect a poor service from lawyers or the family justice system (see for example my previous post on Solicitors from Hell) and I am alive to the suspicion and distrust with which we are often regarded. Sometimes that is because a client has had a genuinely poor service. But my distinctly non-legal advice is this: enlist the support of non-lawyers by all means but do go into it with your eyes open. It's not necessarily an antidote to the perceived corruption of lawyers or the system in which we work. And at £40 p/h it could burn a hole in your pocket worthy of any aspiring fat cat.