The issue of McKenzie friends, particularly of the fee-charging variety, continues to cause much wringing of hands amongst the legal profession. But isn’t the answer to the problem really quite simple?
The latest manifestation of paw-squeezing comes from the Bar Council, which has just published research into fee-charging McKenzie friends and their work in private family law cases, undertaken on its behalf by the Universities of Cardiff and Bristol. Unfortunately, as has been pointed out elsewhere, the research is not as useful as it might have been, being limited just to fee-charging McKenzie friends, and also concentrating on the role played by paid McKenzie friends in court, rather than their role as providers of legal advice.
Leaving that point aside, the key findings of the research included that the McKenzie friends who were interviewed as part of the research fell into five categories (more of which in a moment); that their business practices (training, insurance, etc.) varied; that they generally charged less than lawyers; that their clients were mostly very happy with them; and that some of them showed evidence of questionable judgements or demonstrated misunderstandings related to law or procedure.
As to the five categories of McKenzie friends, these were: the ‘business opportunist’, who was in it to make money; the ‘redirected specialist’, i.e. former lawyers; the ‘good Samaritan’, who claimed to be motivated by concern for the welfare of the client; the ‘family justice crusader’, who needs no introduction from me; and the ‘rogue’, i.e. the charlatan, who was just in it to make a quick buck, with no regard for providing a proper service.
None of these findings should come as a surprise. I suppose the only finding that some might not have expected (and that may concern many lawyers) is the finding that clients of McKenzie friends were mostly very happy with them. However, there are obvious reasons why this would be so, including that McKenzie friends are likely to seem less aloof than lawyers (who understand the need to remain impartial); that they are more likely to tell their clients what they want to hear; and that they are more readily available to their clients than most lawyers (although some McKenzie friends did acknowledge that they sometimes found themselves in difficult, potentially risky situations as a result of client demands or behaviour).
The report doesn’t really come to any concrete conclusions, sitting on the fence of ‘some McKenzie friends are good, some aren’t’. It also falls into the trap of saying that they provide a useful service – for those who can’t afford a lawyer. But that entirely misses the point.
As I’m sure I’ve said here before, the crux of the matter is very simple: either the public require protection, or they don’t. Either those providing legal assistance to the public need to be trained to a high standard, properly regulated and insured, or they don’t. And if they don’t, then the public should be made aware of the difference, as I will explain in a moment. If they are to be regulated then logic suggests that it should be to the same level as lawyers. After all, if it is considered that the public require lawyers to be heavily trained, regulated and insured, then why should it be any different for any other providers of legal assistance? Of course, if McKenzie friends are subject to the same regulation, then they become lawyers themselves, and the problem goes away.
If, on the other hand, the public are to have a choice between regulated and unregulated providers of legal assistance, then it should be an informed choice. They should know what they are getting themselves into, and the risks they are taking. They should know that the McKenzie friend they are instructing may or may not know what he or she is doing, that they are not subject to any sort of regulation, and that they are not required to be fully insured, in case things go wrong. There should at least be a requirement that McKenzie friends provide this information at the outset.
Of course the elephant in the room is legal aid, or rather the lack of it. McKenzie friends did of course exist prior to the abolition of legal aid for most private law family matters, but at least then those who could not afford to pay for a lawyer did not have their choice dictated to them by financial considerations – there was (theoretically at least) no such thing as someone who could not afford a lawyer.