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!)