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.
Hi @fraser_matcham Why yes, you could explain what the indemnity insurance covers where there are no professional standards to meet.
— Nearly Legal (@nearlylegal) March 22, 2017
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?
@Familoo This isn't a formal UoW initiative. However, we encourage & support students developing their own enterprise/entrepreneurial ideas.
— Uni of Westminster (@UniWestminster) March 23, 2017
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.
Update 28 Mar : Mr Matcham has issued a press release on Linkedin. The site will now “ban” “active students” from giving advice. Others will be permitted to do so. The press release is the “definitive” statement in rebuttal of the concerns raised by myself and others. I don’t think it really answers all the questions raised at all, but I don’t think it’s probably useful to get into a potential blog-pong tournament. However, having said I’d update this post if anything significant happened I felt I ought to do so. I was open to some communication response via twitter or email or through comments from Mr Matcham or BPP or Westminster but none of them have contacted me directly or acknowledged my post at all.
You can read the article about this here, and the rebuttal press release here. In the meantime BPP have removed their blog post, their logo has gone off the Marketplace site, and Mr Matcham registered with the ICO (shortly after Nearly Legal and I started asking questions it appears), although from comments on twitter it is unclear whether or not that registration has really correctly categorised the organisation or the sort of data processing it is going to be doing. That is something for others to take up…]
Hi Lucy,
I think the points you make about Universities and law students being driven/pulled/pushed towards risky attempts to get experience, any experience, are important and for that I applaud the blog.
I think also you start from a somewhat unfortunate position of implying that (I may be reading this unfairly, but let me voice the concern and you can tell me off) that well run clinical or pro bono programmes are the exception. I think the vast majority go to considerable lengths to train, supervise and support their students and would benefit enormously from constructive but critical friendship around their activities . It would be unfortunate indeed if this ‘Westminster’/BPP/McKF initiative were used as a brush to tar law schools decent and honest efforts to improve the legal education of their students. I do think some will get the balance between experience and learning wrong, and it might even be that many do and that is something that would be well worth exploring from less polarised positions, contaminated by the much more difficult issues surrounding paid McKenzie Friends and professional monopolies.
Its firms and chambers who look for ‘commitment’ and experience that drive this problem as much, if not more than law schools. So, as I know you can do very well, please have a word with your bretheren on that front.
Ta.
Love the blog as always and your willingness to engage with acuity and insight…
Richard
Hi Richard,
Thanks for your comment. I definitely DON’T Think that well run programmes are the exception. I’m sorry if that is the impression created and I’m happy to correct it. I don’t profess to have some wide ranging knowledge of schemes that are up and running, but I am aware of the ever increasing pressure on both students and providers because of the ridiculous levels of competition for a career in law. I’m sure you’re right that some responsibility for the distortions lies in other places – the recruiting chambers and firms. I confess I’m unsure what they could do in practice to stop this, they have to select somehow – I’m open to suggestions and would be happy to host a guest post from you on that topic?
Lucy
That’s a good idea. Thanks Lucy. I’ll try.
Yay. Great.
Thanks for this article. As someone who merely has an amateur interest in law I found it fascinating and readily understood by a layman (not sure if that’s a good thing from your point of view but I hope so!).
I’d certainly steer well clear of this concept, now, no matter how well-meaning the potential MF.
Observing the (abruptly curtailed) interaction between the MD of this outfit and your colleagues I think maybe the bits at the end of his legs are getting a bit chilly, too!
Anyway, thanks again and all the best, you’ve got another new follower.
Dan
Thanks Dan.
I would never invite a candidate for interview that had taken part in this kind of malarkey. I suspect that Mr Matcham thinks that this will improve his chances when it comes to seeking employment. It might help him to know that it is likely to do exactly the opposite.
I agree with your comments about the insane pressure on candidates to have some sort of work experience when it comes to interview time.
Personally I rarely, if indeed ever, take any notice of work experience when considering who to invite to interview. I can’t remember ever asking a candidate at interview about their work experience.
I so agree with what Richard says (as always). At my place, we have a fantastic Law clinic managed by students and led by a brilliant solicitor, who directs the whole thing. Most other Uni Law clinics of which I am aware offer the same kind of supervision. We are also careful not to overlap with legal aid providers etc. The scheme you have described is clearly problematic but please don’the generalise from a sample of one.
Thanks Dave,
I certainly don’t want to generalise – although I do think there are unhelpful temptations and pressures across the board, I’ve very carefully said that not all schemes are like this. Indeed the reason I’ve written about it is because I think it is significantly different to others I’ve seen.
Matcham’s pitch is that he can give law students courtroom experience – because that’s where the “fun” is.
If a student wants experience, why not do a mini pupillage like everyone else? Because it’s more “fun” to treat poor people’s cases like a dress rehearsal while ripping them off?
To be fair to Mr M students I’m guessing some students find it really hard to get mini-pupillages
Probably true. I think it may also be the case that the there is a sort of CV escalation going on – and that students feel they have to have not one but many mini pupillages under their belt to compete. all hugely unhelpful.
Mini pupillage are easy to get. They are week long and for many chambers, unassessed.
Let’s face the real facts ! MOST family court lawyers are “bad news” !
Why ? Because they gag the parents by “speaking for them” and then rush to agree the interim care order,the final care order,the adoption placement,the adoption order and anythig else the social workers request !
Good bye baby,Goodbye children……………………………
…Says a mckenzie friend who encourages parents in care cases to take steps which will inevitably damage their prospects of keeping or recovering their children…lawyers don’t gag their clients – they do speak for them. That’s what they are paid to do!
You never quote facts and back up what you say with figures, any proof of what you profess to be facts, can never be believed without printed proof
Having acted in the capacity of a McKensie friend only last month I think a mature educated adult with a grasp of best practice procedure in a Court of Law would read up further on exactly what’s expected and what is taboo in supporting a friend. It’s not rocket science for goodness sake and you do not need any legal qualifications anyway. The judge in the case went out of her way to explain the issues in great detail anyway. Being a friend was of immense value to the defendant and though the case was lost correct process was followed and the judge thanked me as we left. Nice eh?
So why this amateurish attempt by Mr Matcham to psuedo- professionalise the role of the friend from below ground zero? Get back to the text books matey!
Agree entirely with your post, but, I think a little more understanding on the dilemma of law students would not go amiss. As someone who acted as an unpaid McKenzie some years ago (which was truly awful, by the way) I entirely sympathise with students who genuinely want to assist litigants and not extort the vulnerable. A McKenzie in the true sense attends court to provide moral support, and not to seek rights of audience or any part of the litigation. You may well say, what is the point then? It can make a great deal of difference to the confidence of the litigant, as attending family court in particular is not a pleasant endeavour especially when the other party is represented. Should students do it within that remit only? Definitely not, as the feeling of being helpless to do anything to positively advance their case is a little bit soul destroying. It is also very difficult not to be dragged into the dilemma of what is advice and what is not. As you say, a little bit of knowledge (or in the case of Mr Matcham, none at all..) is simply not enough to take the risk.
With pro bono schemes more generally, a lot of student schemes do none of the above. Ours sit and watch our lawyers give advice, perhaps fill out a C100 under supervision, and that is that. But even that little bit of insight into realistic client care and practice can make a big difference to legal education. A textbook simply cannot prepare you for a client that says they’ve had a sex change and want to move out of the jurisdiction with the children to live in a cult, and one who then cannot fathom why the other party and the court finds this dilemma a bit of a pickle. Try fitting that into a 30 minute free advice session.
On that note, should you ever find yourself in the nethers of Wales please feel free to drop by and observe the very same, it would be a pleasure to broaden your opinion even if only slightly. I think the biggest value of experience is not what they get to put on their CV, it is the ones that say “Jesus Christ I am never going into family practice. Never. NOPE.” Spoilsports.
Hi Victoria,
I really do sympathise for law students. I hope I’ve made that clear in the post. I think watching is one thing, doing and doing without supervision is another. The scheme you describe sounds like it has real value without too much risk – as you say watching how an experienced lawyer handles a client is a really important piece of learning, and those soft people skills are not taught in lectures.
I would very much hope that a McKenzie friend didn’t find him/herself landed with a case like the one you describe (Sex change, jurisdiction, cult…) – but although the example you give is extreme the nature of family cases is that novel or complex issues do drop in your lap all the time. And it is really too much to expect a law student always to even identify complexity let alone know how to handle it. Its easy to say a mckenzie has a limited role but this scheme clearly envisages some will advise such people – and it is very tempting for a law student to be seduced into doing a bit more and a bit more without even realising they have gone way past their competence if there is no framework or supervision.
[…] A little knowledge is a dangerous thing… [Pink Tape] […]
Whilst I can applaud Fraser Matcham’s energy and initiative, I agree that this should be directed elsewhere. His exercise in setting up a website in a difficult area shows how much “boring” law there is to understand and apply before a legal, commercial solution can be presented to the public.
I note the commercial terms and conditions of the site, as reported by Lucy, appear to leave some uncertainty as to the terms governing any relationships between (i) site and law student, (ii) site and litigant, and (iii) litigant and law student. Getting these 3 sets of terms and conditions right is not a simple 1st year contract law exercise.
Lucy notes the lack of data controller notification. That’s only the entry point to numerous data protection issues, particularly as McKenzie friends will almost certainly deal with senstive personal data.
Lastly, the way a Code of Conduct appears to be used as a means to give the service some legitimacy raises questions of possible offences under the Consumer Protection from Unfair Trading Regulations 2008 that the website and Mr Matcham may be committing.
Mr Matcham may wish to consider that the penalty for offences under the Regulations can include imprisonment for up to 2 years (Reg 13(b)) (http://www.legislation.gov.uk/uksi/2008/1277/contents/made).
Andrew would the UTR offences of which you speak might also apply to some “I’m the best criminal barrister on the planet” websites that were in the news recently?? Of course, they were nabbed by the BSB, a sign of the benefits of legal services regulation.
No way on the planet anyone’d get 2 years for this even if it is an offence. I think given the way everyone is piling in on this young man, we might be clear about that.
Hi Richard,
Happy to confirm that enforcement of the UTRs is not great, and any penalties awarded for the very few cases that go to court are nowhere near the maximum.
Tempted to add that of course an experienced lawyer would know that… 😉
A
[…] and Lucy Reed (http://www.pinktape.co.uk/rants/a-little-knowledge-is-a-dangerous-thing/#comments). The criticisms highlight important issues but I don’t need to rehearse them […]
I have been a lay practitioner in the Family Division for some six years now. I’m a law graduate and work for the Men’s Aid charity. 95% of the work I do is pro bono and I only ever charge costs. I have never made a penny profit out of distraught parents.
Whenever a story on MKFs comes out it is met with howls of indignation from the professions who appear oblivious of the host of atrocities carried out by licensed professionals. It never comes from the public or the client base.
I’m a one trick pony and have little knowledge of working practise in the Criminal Division or other areas of Civil law but my observation is that the entire Fam Div is a chaotic mess that lurches from one crisis to another. The reason I and others have got drawn into lay practise is because no one else will pick up the pieces. The parents that turn to us can never afford professional representation and public funding is now virtually non existant. Therefore it is inevitable that society will attempt to fill that vacuum.
There have been some distastrous lay practitioners lately including David Bright, Nigel Baggalay and [edited], all of whom I have had dealings with but there is no data to suggest lay practitioners are any more deviant or abberant than licensed ones. When they do go rogue it is people like me that bring them to the attention of the authorities and pick up their victims not the professionals.
I’m unclear whether this article is yet another bash at lay practitioners or a considered critique of Mr Hatcham’s enterprise. To be honest I find his adventurism unnerving too. I am also disappointed that it is constructed to serve law students and their ambitions and not parents and children.
I realise this is a trade journal but I urge you to consider one legal principle. Statutory law follows common law. It cannot deviate from common law. It is there to amplifiy formalise and nuance common law but not make up contrary principles. Lay advocates are integral to common law. They were not invented in the McKenzie case. That simply formalised the common law tradition. They date back to the Roman patriarchs. They feature at the Danish ting and Saxon councils. In military courts of honour today servicemen still depend on officers they trust to speak on their behalf. The law existed long before professionals. Law does not belong to the professsionals. It is not their domain. With that comes a cost. Lay practise will attract the good the bad and the ugly. Just as there are good and bad drivers and plumbers so there will be good and bad lay practitioners and indeed professional lawyers.
When the Law Gazette is no longer filled with scandals relating to lawyers fleecing estates, beating their wives, dealing in cocaine and perverting the course of justice you may find time to pontificate on the affairs of the lay millieu.
Peace
You are arguing against a point I haven’t made Richard. I have not condemned all McKenzie friends, I have explicitly said this is NOT a bash at all mckenzie friends.
And this is not a trade journal. It is just a blog written by a lawyer.
PS It is wrong to say that statutory law cannot deviate from common law. If it couldn’t deviate from common law what would we need statute for? Parliament could legislate to outlaw mckenzies or paid mckenzies or green ties in court if it wanted to. It hasn’t. Some might say it should (especially viz the ties) but it hasn’t.
You are undoubtedly right that there are bad lawyers. The point is that if they are bad there is a system of redress. That system itself may be imperfect, but it is there, and the examples you give from the Gazette are examples showing that the system is punishing those individuals, often by preventing them from practising in future. If a mckenzie is guilty of bad behaviour there is likely to be no real redress unless the conduct is also criminal (as in the case of David Bright). I remain to be persuaded that mckenzie insurance is a meaningful contribution to consumer protection. All that does is to protect the mckenzie in the event of a claim, but if there is no claim to begin with (for example because the terms of the contract are too imprecise and a duty of care or standard cannot be established) then it won’t help.
I understand that you are not personally attacking all lay practitioners (I dislike the term McKenzie friend as it only applies when people sit in court and most work is done outside hearings) but as stated you blog and indeed any other article on the subject of lay practise initiates choruses of outrage from the professions. I take your point that your voice may not be among that throng.
With respect the point is not that there are regulatory mechanisms in place to remedy abberrant and abusive behaviour by professional lawyers but not for lay practitioners at all. The point is whether such measures are effective. Clearly professional lawyers continue to fill the pages of the Law Gazette and other publications with scandalous adventures so regulation of that kind is clearly not a cure-all.
Conversely Nigel Baggalay did not commit a criminal offence as did David Bright but was still banished from the Fam Div by Lord Munby for gross misconduct in Court. [edited for legal reasons]
The topic of insurance is something else that again has no tradition in common law. I am covered through Men’s Aid group public indemnity policy but I don’t see it as essential to practise. Consumer choice.
One of the major differences I have noticed between family law and criminal law is the duration of cases. I have on case at present that has lasted over four years. I have been with it for over two acting pro bono. The costs involved of sustaining actions lasting years are completely beyond the means of the common man. Many of my cases are from people who have exhausted their finances on costly law firms and only then turned to myself and others out of desperation. Unrepresented parents fall easy prey to skilled opposition in an adversarial and consequently not only they but the children who depend on them suffer.
I and others like me attempt to fill that void in the Fam Div and there are no get-rich-quick schemes that I know of. Sadly the only gaps young Fraser and his colleagues are attempting fill seem to be the ones on their CVs.
It is doubtful where nineteen year old students truly have any concept of appalling and irredeemable harm even the best conduted family proceedings have on participants and their dependents. I experience at least one suicide a year just from my sphere of contacts. I deal with children who have had virtually every inhuman imagineable act perpetrated on them and quite literally have recurring nightmares over it as I’m sure many professionals do too.
I don’t campaign and I don’t lobby. You will not find me dressed as Spiderman on your roof and I can’t change the landscape of family law but I do try and save a few along the way. These are the ones that the professions allow to wither on hard ground. For these people anything is better than nothing.
Peace x
Thanks for your further comment Richard. I’m sorry I’ve had to edit it for legal reasons, and I’m sorry that this means it loses some of its impact. I’ve cut as little as I could.
That’s OK although I noticed you left my typos and spelling mistakes in. Shouldn’t have done it first thing in the morning. My caffeine fuelled rants are much better
can’t say I noticed. I probs hadn’t had enough caffeine myself when I approved it…
[…] Pink tape and Nearly Legal are worried about a new advocacy service […]
Dear Lucy,
As an avid reader of your posts, I would like to compliment you on your attention to detail on this and many other subjects,
you present a balanced, trusted and educated view. In particular I heed your warning to the venerable who may be tempted to use this site. Yes, I can appreciate that overtime this may prove beneficial as the problems you specify are ironed out, however what hope is there for the poor guinea pigs in-between, who fall into the holes you have potentially predicted.
Litigants do need help and assistance, there is a great and urgent need for this to be provided, litigants are a growing number. However this kind of site portrays as a spider web to unsuspecting flies and butterflies that may otherwise have made a wiser landing.
McKenzie Friends, like lawyers and barristers, are chosen based on chance, location, merit, recommendation, experience. A litigant’s lack of knowledge, and finance may determine the unfortunate/ fortunate choice from belief/trust in a site like this.
Trusted regulation and standards is the key that appears to be completely missing if I am reading correctly, otherwise there could potentially be many needless vulnerable casualties, who are unable to recover form misguided trust, not just litigants but McKenzie Friends too.
Lesley
Thanks Lesley
How exactly would regulation effect the factors you just listed ‘chance, location, merit, recommendation, experience’?
[…] there were the practitioners’ blogs, such as family lawyer Lucy Reed’s ‘Pink Tape’. Here, she said of the […]
It seems Mr Matcham has rethought his position…
https://www.lawgazette.co.uk/law/mckenzie-friend-entrepreneur-backtracks-on-student-portal/5060442.article
yes, post has been updated to reflect that.
How different are things in (say) medicine where come every August, having been students the previous week, some 6000 F1s magically are deemed to be able to perform to somewhat higher standards on the front line.
I am sure that young Lucy’s learning curve (or anyone else for that matter) was not devoid of (grave) errors – that equally went unpunished or were not compensated for.
The Bar is rather behind the error strewn reporting standards of patient safety reporting if not the supposed gold standard of aviation safety – to give the public the impression that they are equivalent is lazy, devoid of insight if not disingenuous.
For sure, if I said I’d not made any mistakes I’d be an exception to the rule. But the important points are that as a wibbly young barrister I was a) insured and b) under supervision and c) acutely aware of my own limitations.
I agree that the way the aviation industry works is a good model for many other fields. But whatever the faults of the bar’s regulatory system (and for the other legal regulators for the other branches of the profession) it is surely better than a “quasi-regulator” with no powers at all.
[…] Richard Moorhead, but in this case a guest post by Dr Leanne Smith) posted about this topic. Lucy posted about it too. I recommend all those posts. I watched this unfold from a safe Scottish distance, […]
[…] in for a bit of flak, notably from legal bloggers Lucy Reed (a family law barrister) on Pink Tape (A little knowledge is a dangerous thing) and and Giles Peaker (a housing law solicitor) on Nearly Legal (BPP, fee charging McKenzie […]