Probe into growth of ‘professional’ McKenzie Friends

7 January 2014

Court representation: some McKenzie Friends charge £40 an hour

The Legal Services Consumer Panel has begun an investigation into the emergence of ‘professional’ McKenzie Friends who charge litigants in person for their services, it has emerged.

The panel said that while such services are mostly prevalent in family law, it has come across providers who offer such assistance in criminal cases.

Some offer to act as lay advocates, subject to the judge granting them rights of audience on a case-by-case basis.

It is the latest issue to highlight the divide between regulated and unregulated legal advisers. Last year the panel expressed concern that struck-off solicitors are acting as McKenzie Friends, raising ethical concerns and providing a service that gives no recourse to the Legal Ombudsman.

The panel’s starting position is to recognise that professional McKenzie Friends are a feature of the legal system which is appearing to grow and that there is a lack of knowledge about this emerging market which would be useful to address.

Over the next few months the panel is to build a picture of the market, and next month plans to host a seminar to elicit views on what the main issues are and how they should be addressed.

Suggested policy responses include outlawing charging a fee for McKenzie Friend services, creating a blacklist or developing a self-regulatory solution.

A spokesman said: “One of the predicted implications of the legal aid changes is an increase in litigants in person and consequently an opportunity for McKenzie Friends to help fill the gap in legal representation which many people are unlikely to be able to afford.

“McKenzie Friends have traditionally operated as volunteers but we have identified an emerging market of individuals and microenterprises which charge for these services, perhaps at an hourly rate of £40 an hour upwards.

“There are mixed attitudes towards this development. One school of thought has concerns that these people may provide poor advice, offer little in the way of consumer protection, prey on the vulnerable, promote their own world view – for example, on parenting – and undermine lawyers’ reserved activity rights.

“The other says that some help for litigants in person is better than none at all, some McKenzie Friends are very competent and ethical, and that lawyers are not losing out because their services are unaffordable for the client group using these services.”

To participate in the project, e-mail contact@legalservicesconsumerpanel.org.uk.

Readers Comments

Michael Robinson says:
January 7, 2014 at 1:55 am
An interesting article, and if I may make a couple of observations.
The Practice Guidance on McKenzie Friends states the court can bar a McKenzie Friend from entering court. No doubt this mechanism could be expanded (and the guidance would already allow this) so the judiciary can bar individuals whose conduct is inappropriate. Perhaps they are best.
As for the issue of fee charging, there are McKenzie Friends who also do not agree with charging (but few in a position to be so generous!). Iin the real world, how many people are in a position to give up time during the working day to assist people in court. Also, I tend to think the adage ‘the labourer is worthy of the hire’ is not unreasonable. People have mortgages to pay, children to feed, and expenses to cover. I do not think those on an income have the right to tell others to work for free.
Charging McKenzie Friends have been around for at least the past seven years. It is not a new thing.
People do have a choice, but if they cannot afford a solicitor, because legal representation is too expensive, the legal profession should not interfere with their free choice… and one of those is the right to reasonable assistance (which as our President of the Family Courts says, should only be refused in rare instances).
Michael Robinson
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Vincent McGovern says:
January 7, 2014 at 10:24 am
Hi Neil
I am a part time McK charging £15 ph, sometimes not getting it, such is life. I have also had finding in my favour from the Legal Serv Ombuds against SRA for not dealing with a malpractising solr in family law. I am currently assisting another LIP who has a dodgy solr before Resolution panel and also SRA for child endangering wrongdoing. So please less re ethics because I have found them significant by absense in the legal profession.
Vincent McGovern.
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Finola Moss says:
January 7, 2014 at 3:41 pm
Might not be a question of regulated and unregulated, but establishment approved, or not.
The public may be losing confidence in conventional family/ mental capacity act lawyers. The question that should be asked is why, rather than if they are being exploited.
By the removal of most legal aid from family matters, it is inevitable that the public will have to become lawyers themselves, or choose someone they feel they can trust, who may not be the advertising ABS etc.
The only problem from a client prospective is can the representative be trusted, sued, and for what, and their insurance provision, but this appears an increasing problem for regulated lawyers.
Why are the legal services consumer panel getting involved, have there been complaints about services of these providers?
Surely in a free market it should be the public’s choice.
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dai says:
January 10, 2014 at 10:28 am
Are they investigataing the unregulated ciosts consultants being used in costs procveedings?
They often hav eno knowledge of the rules or procedures other than adding up/arithmetic [some do no0t do that properly either] yet their costs are paid by the legal services commission.
if professional mckenzie friends are to be regulated then legal aid can be paid to them? It would certainly drag down the cost of ltigation and funding as one would expect the pro MKF charges to rise and solictors and barristers to come down meeting somewhere in the middle. would make the barristers strike against lower legal aid fees look futile?
I echo one/some of the copmments above regarding solicitors the panel should be looking into the failure of regulation with solicitors and we all know how hard it is to get a judgement in the lower courts regarding the conduct of soliciitors without such a judgement the SRA and Law Ombudsman will not investigate. will it be the same rules for pro MKF??
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Stuart Graham says:
January 10, 2014 at 9:29 pm
Let’s take two areas of family law where I’ve helped litigants: mothers and fathers in private law and working to assist mothers who have had their children taken in public law.
Fathers contact me after they feel they have let down by their solicitors. Hearing after hearing they get nowhere because their own solicitors allow the other side to play dirty. The courts and CAFCASS are over-sympathetic to the mother. I pick apart the previous documentation, prove to the court it has been led up the garden path, and the father gets to see the children. Lawyers have a code: “I will keep quiet about the other side’s misfeasance and pocket the extra cash it brings for me too.” Lawyers are officers of the court, which to some seems to mean they will provide the court with as much business as possible. Why wrap a case up in one or two hearings when you can do it in 100?
In public law, the emphasis for many is on the removal of the child from the parents. Local authority lawyers omit key evidence from court bundles that support parents who wish to keep the child. The solicitors representing respondent parents don’t obtain case management documentation to counter the LAs and reveal their malfeasance. I have heard of many cases where the lawyers have been sacked half way through care proceedings and a McK has taken over once parents finally get to know the process. I will say, however, that the degree of lies and cheating on behalf of some LAs means respondents’ solicitors have too much to do on the money they are paid and too little time. So they just put their heads in the sand and take the money.
Fill a room with 100 lawyers and ask a question as to legal opinion on a specific family law problem you get lots of different answers. They will all be able to tell you the process; what form to fill in. Because for many, that’s all they do – forms and applications. Arguing the case properly loses money.
There is effectively little or no accountability for family lawyers. Even if you win a complaint, the compensation is pathetic.
There are some competent lawyers out there but how would anybody know who they are? Hiring a lawyer is a an expensive lottery; some have no real knowledge of the relevant law; no vested interest in clearing things up; no accountability; no redress for poor work. poor work is covered up within the profession. Word soon gets around about poor McKenzies, however.
Then there’s the lack of confidence in the judges. Fathers can have the best case possible and still be refused contact.
Little wonder then, that people are using McKenzies when they are forced to use the lottery of the family courts. If you’re going to get screwed over, you may as well cut your losses from the start. A good McKenzie will not engage in the same games as the lawyers and his lack of duty to the court helps him to properly inform the court.
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Stuart Graham says:
January 10, 2014 at 9:40 pm
A note from the esteemed Robert Franklin, esq on biased outcomes in US courts:
“That comes as no surprise to fathers who, though they make up some 70% of divorce defendants, rarely bother to even file an answer to the mothers’ divorce petitions. Some 58% didn’t contest the matter and, of those who did, only about half hired a lawyer. That unwillingness on the part of fathers to seriously contest child custody strongly suggests they know the outcome in advance and don’t see the sense in paying a lawyer to reach a pre-ordained conclusion.”
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sharon gaiger says:
January 10, 2014 at 9:58 pm
My son could not have managed without the support and more importantly the knowledge of the legal system of his Mckenzie friend.
No charge……for all the work done
Im sure every Friend is different, but any of us using their knowledge would not think it unreasonable to give a “gift”. for their time and expenses.
Expensive lawyers are not always needed and Mckensie friends help give everyone a chance to succeed in the courts.
Sharon
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Tim Line says:
January 10, 2014 at 10:33 pm
I would like to comment particularly on the comment above:
“One school of thought has concerns that these people may provide poor advice, offer little in the way of consumer protection, prey on the vulnerable, promote their own world view – for example, on parenting – and undermine lawyers’ reserved activity rights.”
I am wondering how the author thinks the legal profession provides anything different?
Lets take consumer protection. The legal profession is one of the most complained about industries (if not the highest). The Legal Ombudsman and the SRA have an absolutely appalling record of upholding legitimate complaints. I shall take 2012 as an example. In 2012, a total of 10,551 complaints about solicitors were received by the SRA. As of June 2013, around 8351 of those complaints have been considered and the cases closed. But of those 8,351 cases, just 52 of them resulted in the solicitor being referred to the Solicitors Disciplinary Tribunal, where punishments such as a fine or striking off can be handed down. Of the remaining 438 complaints that were upheld, the solicitor in question got nothing more than a letter of disapproval. These figures make it hard to have faith that the SRA is fit for the purpose of protecting the public and upholding standards if 94% of complaints are not upheld, and just 0.6% end with even a possibility of quantifiable punishment.
By way of comparison approximately 60% of complaints received by the Financial Services Authority are upheld.
Most people that make complaints are seriously out of pocket as a result of the wrongdoing , yet the SRA thinks that a ‘letter of advice’ is protecting the public? Its an outrage.
The Legal Ombudsman is no better.
Added to that neither organisation will accept any complaint about a solicitor unless that solicitor being complained about has been instructed by you. This is another outrage!
Prey on the vulnerable…….. my main experience is of family proceedings and it is my opinion that this is EXACTLY what huge numbers of unscrupulous family solicitors do, until of course the money runs out.
“..promote their own world view – for example, on parenting…” – Funny that the author should specifically mention parenting. My knowledge of McKensies in Family Court is that they absolutely understand what a parent is, that 2 parents in a childs life is far better than one etc etc. And why? Because most of them experienced what using solicitors did to destroy their own families and as a result of seeing what goes on in secret behind the closed doors of this country’s Family Courts, they are determined to help others avoid making the same mistake.
This whole article to me sounds like the legal industry doing what it always does and that is to block any improvements that have any effect on their income stream. My experience of the system is that it is self serving and cares very little about the wrecked and financially destroyed families that they leave in their wake.
Over a million fatherless children in this country are testament to that!
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Stuart Graham says:
January 10, 2014 at 10:46 pm
When is there going to be an investigation into the services provided by family lawyers?
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Kip Miller says:
January 10, 2014 at 11:37 pm
McKenzie Friends have increased because judges no longer see it as part of their role to instruct litigants in the law. In the ‘good old days’ if the applicant made a silly remark he would be rebuked and told how he went wrong. These days judges use these mistakes in their judgments without regard to the rights and wrongs of the procedure. There is also a tacit acknowledgment by the judicial hierarchy that because the situation has changed and judges no longer automatically occupy the moral ‘high ground’ McKenzie Friends are needed to provide some semblance of justice. Too often we hear that the courts are overloaded without considering whether this is simply the result of an increasingly more unjust society.
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Ray Barry says:
January 11, 2014 at 8:14 am
I am part of a Community Interest Company delivering professional McKenzie Friend services.
I have sympathy with judges not knowing whether they can trust the particular McKenzie Friend in front of them. The answer must surely be to introduce a regulated body of professional McKenzie Friends, with a simple, inexpensive model of regulation to reflect that this service must run on a shoe-string if it is to meet the needs of the market it is serving.
What is often overlooked in this debate is that some litigants prefer to present their own case before a judge, trusting to their own greater knowledge of the facts and nuances of the case, rather than handing that responsibility over to a lawyer. It’s not always just about saving on legal costs.
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Jerry Karlin says:
January 11, 2014 at 4:44 pm
At Families Need Fathers (FNF) we have long maintained a list of McKenzie Friends on our website (www.fnf.org.uk). Many of these will be people who have contributed (or still do) their services for free in the more than 50 FNF support groups and FNF branches throughout the UK, supporting separated parents, grandparents and others through the minefield which is separation. I avoid the term professional for obvious reasons preferring to classify McKenzies as free or commercial. Some are both and will do pro-bono work depending on circumstances. McKenzies can be specialised or generalists and as long as they are open and honest about their skills, they can be invaluable in court or in preparing for court. A big role is also in warning people that perhaps surprisingly, going to court does not always lead to a sensible and reasonable outcome, counselling that collaboration and mediation are another increasingly important (and very undervalued) consideration.
It is essential in our view that all McKenzies have such experience working in this field long before they can become independent practitioners. That way they can be mentored or mentor others in a dedicated volunteer environment where earning a living comes second to supporting distressed and/or confused parents who need support and guidance. The outrageous cost of justice for even simple issues of contact for example, often unbalanced further when one party receives Legal Aid, make McKenzies an incredibly useful source of intelligent and pragmatic support. Is it fair that tens of thousands of pounds need to be spent simply trying to ensure (too often unsuccessfully) that a child can spend time with both of its parents? Surely a natural human right for both children and parents. The fact of the matter is that despite the use of professional legal services poor outcomes occur all too often and even this is not affordable to most without debt and deprivation for them and ultimately for their children.
As others have noted a McKenzie will simply be a person that a litigant in person can trust. An assistant who has the necessary experience to support them in making difficult decisions (and NOT making the decisions for them) regarding matters and in an environment which most people know almost nothing about. Of late, even people being represented via the Barrister direct access scheme will use our branches or McKenzies to help them to brief Counsel directly. The bottom line is that to guide an individual through the legal maze is usually nowhere near as complex as other areas of law where legal argument is much better defined. In family law cases a sensitive, sometimes therapeutic and very human approach is required to promote shared parenting and to achieve the best outcomes. That is why FNF and McKenzies are successful in today’s world.
At FNF we believe that some form of best practice, accreditation and validation is becoming increasing important especially as it is so simple to “set up shop” and skill sets can be so diverse. Our Branch officers have an impressive amount of experience in these matters and we are already working hard to improve matters from within.
Jerry Karlin
Chair
Families Need Fathers – Because both parents matter.
http://www.fnf.org.uk
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Nigel says:
January 14, 2014 at 2:19 pm
“Suggested policy responses include outlawing charging a fee for McKenzie Friend services, creating a blacklist or developing a self-regulatory solution.”
Unfortunately the wording suggests a pre-ordained outcome.
I am now a litigant-in-person having experienced a solicitor deliberately dragging out the case for her own financial gain to the detriment of my child. By failing to progress the case after he became suicidal, the malpractice is clear, but why bother when the child is clearly the urgent priority?
It’s pointless to complain about the solicitor as the SRA/Ombudsman will act 1st to protect that solicitor.
It is already easier to shop around for McKenzie Friends (who I have not used officially) than it is to shop around for solicitors on legal aid – only 1 solicitor responded from emails requesting assistance from 69 locally practicing legal aid firms, and High Cost cases mean you are stuck with them however bad because you simply cannot switch.
What’s needed therefore is to get the current house in order, before widening a net which is already full of holes, since people using McKenzies can vote with their feet if dissatisfied AND can choose their McKenzie by reference & referral, both of which are impossible with legal aid solicitors.
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chris coutanche says:
January 23, 2014 at 6:40 pm
McKenzie friends who support cases in my view are here to assist parents who are unable to afford solicitors, Charging a fee over what would be considered as reasonable in my view is unfair. McKenzie friends who spend time in court each week will loose vast sums of income, so the fact is we all need to make a living. the cost of being a full time McKenzie friend needs to be considered, in conjunction with the input and cost of providing a reasonable service, after all the red practice book costs £350.00 websites cost thousands, travel and overheads. we are not here to exploit parents for the inadequate family law system, we do it because we see children being denied contact with parents each day, I gave 7 years of my time and my money to help cases, and to gain vital experience in law, only recently have I asked for my expenses to be paid! maybe its time to have some regulation on solicitors who over charge parents, so we can all go and do our jobs we left before we started to help others
Chris Coutanche
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R Goto & C H says:
March 24, 2014 at 7:57 am
Why are `Litigants-in-person` in civil cases against the Police and/or Social Services almost always branded “Vexatious” by appeal court Judges (even those `Masters` who claim they didn`t have the case file, when it is later proven that they did), even where clear evidence of offences and Human Rights abuses by public officials is provided in material evidence; and where all material evidence proves and/or overwhelmingly supports the case for the litigants-in-person?
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