Those of us who are professional advocates reacted largely with horror when the Legal Service Consumer Panel called in April of this year for a “culture shift” in favour of recognising the rise in and increasing use of paid McKenzie Friends in our courts by extending regulation to them. Quite why this quango exists in the first place may well be a mystery to some (as it is to the writer) but surely for them to have spent clearly much time and (of course, public) money coming to such a conclusion may well lead to some (yes, including the writer) to question its utility. The recognition of a role for paid McKenzie friends and such a “culture shift” (whatever that could possibly mean) would put such individuals on a par in the eyes of many court users with professional lawyers.
The reality in the eyes of many of those appearing before the civil courts on a daily basis (yes, you have guessed it – including the writer) is that such “professional” McKenzie friends are a complete hindrance to the just and efficient disposal of a case. Judges in certainly the County Court are well used to assisting litigants in person. Usually unreasonably intransigent in negotiation, ignorant of procedure and improper in their conduct, a case where one party is being “represented” by such an individual tend to take at least twice as long as those where the litigant is represented, and at least half as long again as compared to when they act in person.
Professional fairness amongst both branches of the legal profession dictates openness and a certain assistance must be afforded lawyer-less litigants, at least in terms of procedure and as regards the conduct of any negotiation. The presence of a professional McKenzie Friend is unlikely to be of any added benefit to a litigant, even commensurate to the relatively lowly fees they seek.
It is only with a modicum of relief that it has been reported that the Legal Services Board Chairman has not exactly swallowed the Consumer Panel’s recommendation whole.
In a letter to the Panel, Sir Michael Pitt is reported as having supported the suggestion that paid legal advisers should be recognised as a ‘legitimate feature’ of the legal services market and perhaps bizarrely agreed McKenzie friends may improve access to justice, but he stated that he was ‘cautious about formally accepting’ all the Panel’s recommendations.
He wrote that safeguards are needed to clarify the role and limitations of paid McKenzie Friends, however he did not state that he advocated the regulation of their services. Showing he may not be wholly out of touch he added that the “skeptical – and indeed sometimes hostile” view of many in the legal professions showed the importance of providing clear and targeted information for litigants.
However he is reported as having agreed with the Panel that McKenzie friends should form a recognised trade association, with client protection measures such as accreditation and indemnity insurance introduced to manage the risks.
Sir Michael is reported as writing quite properly: “We are concerned that [McKenzie friends] may be misleadingly perceived as offering a service underpinned by the same standards and consumer protections that are provided by a regulated professional… That is not to say, however, that we are advocating the regulation of the services provided by McKenzie friends. To do so might drive such provision out of the market.”