McKenzie Friends

Just as I was pondering what I might blog about this weekend an email arrived in my inbox about an article I once wrote on McKenzie Friends. The email contained some information concerning the alleged actions of a representative of a father’s rights group who had been acting as a McKenzie friend in children proceedings. It was suggested that the McKenzie friend had written a letter to the court containing knowingly untrue and defamatory allegations about the other parent, had failed to copy the other parent in on the correspondence and the letter had lain on the court file for a year before being seen by the other parent when s/he bespoke a copy of the court file for other reasons. Insinuated in the information I have been given is the fact that the defamed parent resorted to either a legal action in defamation or the threat of such legal action in order to rectify the situation.

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I haven’t been told the nature of the defamatory allegations or of the case concerned, so I can’t verify it, but assuming it to be accurate I would imagine that this type of unconscionable behaviour is the exception rather than the rule. This post is not about that specific case, but on a general level it raises some interesting points about the limits of the role of a McKenzie friend and the difficulty of controlling or monitoring the conduct of ‘rogue McKenzies’.

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From the perspective of the court or a qualified legal representative (and of course the litigant in person herself) a McKenzie friend can be extremely helpful, and a litigant in person is plainly entitled in the ordinary course of events to have assistance from such a person. See the President’s Guidance on McKenzie Friends, recently updated. There are various authorities dealing with this topic but the practice direction refers to the most important of those along with the various principles including the presumption that a McKenzie friend will be allowed and the circumstances in which that presumption will be disapplied.

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The Guidance also summarises what a McKenzie friend is and is not: A McKenzie friend is NOT a lawyer and is NOT a representative. She has no rights of audience (cannot address the court directly) and is not entitled to conduct litigation on behalf of a litigant. It might seem at first blush unecessarily restrictive to limit what a McKenzie friend can do in this way, particularly since some ‘professional’ McKenzie friends are quite knowledgeable and experienced (by which I mean McKenzie friends who repeatedly act for parents perhaps through an organisation, rather than a one-off favour to a friend). But as the interests of justice are at stake it is important that safeguards are in place even if they are guarding against problems that arise infrequently.

If the anecdote above is to be believed it demonstrates that even those who one might think would know better are either unclear about the limitations on their involvement or do not consider themselves bound by them. In the context of ‘professional’ McKenzie friends who offer their services via parents’ rights groups and where the ethos may well be that the family court system is unfair or biased against parents and / or fathers there must be some real incentive to do whatever is necessary to achieve the result for the ‘client’: if the system or the rules are unfair why play by the rules?* And of course it is that sort of ;means to an end’ approach that one would hope not to see put into action in the case of a lawyer operating under a code of ethics or professional conduct (I foresee comments from individuals offering examples of unethical or dishonest conduct by lawyers as a response to this – to which I pre-emptively say – it happens, but in my experience its rare – Bruce Hyman is one obvious and quite extreme example).

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There are of course other important differences between a lawyer (solicitor, barrister or legal exec) and a McKenzie friend – a lawyer both has a formalised legal education which will include education on the limits on the role of the McKenzie friend and on professional ethics, and will be regulated and subject to a code of professional conduct and formal complaints procedure. A lawyer would be unlikely to place correspondence containing knowingly false allegations on the court file or to do so without copying the other parties into that correspondence because she would know that it would contravene various professional conduct rules (and potentially statute), because it would be obviously unfair and because she would be at risk of complaint, discipline or in extremis striking off. There is no such protection in the case of a McKenzie friend and the only recourse an opposing litigant would have in such a case would be to write to the court asking for the barring of the individual from acting as McKenzie friend, the removal of the information from the court file, or perhaps the threat of satellite legal action in defamation as in the case above (which might be rather taking a hammer to crack a nut, and I would have thought might be rather shaky legally speaking (can correspondence to a Judge in connection with family proceedings amount to defamation by ‘publication’? Perhaps so if the correspondence is not by a legal representative and / or is knowingly untrue – but I’ll leave that to the defamation experts and to another post)).

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Of course most McKenzie friends will not stoop to dishonest conduct, but some may still unwittingly engage in inappropriate or unfair practices because they are not familiar with court process. To draw on the anecdote above as an example, correspondence may be sent to the court and not to the other side, read by the Judge but go unchallenged by the party who is in the dark – for the inexperienced it often never occurs to them that everything the Judge sees ought to be seen by both parties or that the court may not pass on copy documents as a matter of course. Ordinarily a Judge who sees correspondence from a litigant in person or McKenzie friend will double check that this has been seen by all parties and may even arrange for court staff to send on copies, but this is not a foolproof mechanism and is likely to get missed. Of course a Judge ought in any event to be fairly circumspect about allegations contained in a letter where those are not backed up by evidence and where no findings have been made, and would inevitably ask the parties about their position in respect of such allegations prior to basing any interim decision upon them.

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Generally speaking McKenzie friends are a good thing, and frankly whether we lawyers like it or not we have to live with them – they are important for litigants in person, particularly those who lack confidence or are in fear of their opponent. But they are one of a group of individuals who can become involved in family proceedings without the rigorous ethical training and regulation that protects families against the conduct of rogue representatives in the ordinary course of events. Some courts have developed a practice of permitting paralegals (unqualified employees of a law firm) rights of audience in children act directions or conciliation hearings. Anecdotally I have heard of some isolated instances of inappropriate conduct by paralegals and have on at least one occasion been on the wrong end of this kind of sharp practice from a paralegal – conduct which could well have resulted in a professional conduct charge for a qualified lawyer. I don’t know how often this happens – I’d be interested to hear other people’s experience or views of this – but that it happens at all is unfortunate.

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Whilst the court needs to ensure that the parties are – as far as possible – on an even footing, and are able to obtain representation even where they cannot afford a fully qualified lawyer, the courts and lawyers alike need to be alert to the risks arising from involving unqualified non-parties in proceedings. One small amount of protection would be to ensure that in all cases where a McKenzie Friend is involved the court provides them with a copy of the President’s Guidance – the newly updated version dated April 2008 is in fact quite helpful and relatively accessible to a non-lawyer. Another would be to implement court office systems that ensured that cases involving a litigant in person or McKenzie friend are flagged so that court staff check whether documents filed have also been served. Solicitors would be wise to make checks with the court regarding documents filed prior to hearings, and counsel to confirm the same with the Judge or court staff at the outset of the hearing regarding documents filed on the day (although in the latter case court staff often pick this up and ensure copies are circulated).

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* Perhaps what I say is unfair to individuals offering their time as McKenzie friends via rights groups, but what I am really saying is that I understand the disincentive to scrupulously fair conduct if you consider yourself to be operating within a fundamentally unfair system – although I wouldn’t align myself with that position or indeed consider it to justify the kind of conduct I’m talking about.