Consider this: you need to go to court for custody of your children following the breakdown of your marriage; you aren’t eligible for legal aid but nor can you afford a solicitor …what are your options? Well, you can either represent yourself or call a McKenzie friend. But will that ‘friend’ act in your best interests?
It seems the judiciary is asking the same question and The Law Society Gazette last week reported on its launch of a consultation into the role on McKenzie friends in the court room, proposing a ban on fee-charging McKenzie friends and recommending that McKenzie friends sign up to a code of conduct.
What is a McKenzie friend?
The McKenzie friend was born out of the 1970 divorce case McKenzie vs McKenzie, in which the husband was representing himself and wanted someone who wasn’t legally qualified to sit next to him in court, prompt, take notes and suggest questions in cross-examination.
To this day, a McKenzie friend can help you (as a litigant in person) with court papers, attend court with you, give advice to you in court, take notes about your case and generally support you.
For decades McKenzie friends have largely been relatives, family friends, law students or charities helping out free.
The rise of fee-charging McKenzie friends
However, as the BBC has previously reported:
Such McKenzie friends still operate, but in April 2013 the market in fee-charging McKenzie friends got a turbo boost from the government.
It cut legal aid from a range of areas of civil law, including most family cases involving divorce, child contact and residence, as well as debt, housing, immigration, welfare and employment.
That left many with a stark choice. Go to court on your own or, if you can't afford a lawyer, phone a McKenzie friend.
Without much fanfare, McKenzie friends charging between £16 and £90 an hour have become an important part of the civil justice landscape.
Although their role is supposed to be limited, they are increasingly mirroring the end-to-end service traditionally supplied by qualified lawyers.
They are not allowed to conduct litigation, but there seems little to stop them advising and drafting documents in a way that amounts to the same thing.
It is the fee-charging McKenzie friends that have continued to divide opinion and in April 2014 the Legal Services Consumer Panel conducted the first major report on fee-charging McKenzie friends, summing up the divergence of views on them:
"One school of thought is that they improve access to justice by providing valuable support for litigants in person.
"Another view worries that such McKenzie friends may provide poor advice that harms their client and third parties, offer little in the way of consumer protection, prey on the vulnerable and exploit litigants as parrots to promote personal causes."
Whilst it can be argued that McKenzie friends offer an alternative solution, there have also been increasing concerns over the behaviour of certain practitioners after a former nightclub bouncer was last year barred from acting as a McKenzie friend after calling a lawyer a ‘lying slag’.
The good, the bad and the ugly
These split opinions seem to highlight that like many professions, there are good and bad McKenzies. As the BBC previously reported, the difference is that the client has remedies against the latter through professional bodies, regulators and ombudsmen.
It seems that the judiciary’s current proposal is intended to rectify this; to protect ‘vulnerable litigants’ from unregulated and uninsured individuals – full details of the consultation can be found here.
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