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Consultation launched on McKenzie Friends
The Judicial Executive Board has issued a consultation paper proposing reforms to the existing guidance for ‘McKenzie Friends’ ...
https://www.judiciary.gov.uk/announcements/mckenzie-friends-consultation/
From the Law Society Gazette -
‘The judiciary is proposing a ban on fee-charging McKenzie friends in order to protect ‘vulnerable litigants’ from unregulated and uninsured individuals.
In an eagerly awaited consultation on the issue, published today, the judiciary also recommends that all McKenzie friends sign up to a code of conduct, and that rules governing the courts’ approach to McKenzie friends be legally codified .....’
From the Law Society Gazette:
Two major legal representative bodies - the Law Society and the Bar Council - have rounded on the emerging phenomenon of paid McKenzie friends, calling for a blanket ban on remuneration and warning against any moves that could give the public the impression they are regulated.
Smacks somewhat of sour grapes to me…..
To clarify…..
The Society said this would imply that McKenzie friends are ‘quasi-regulated’ and could ‘inadvertently’ give the impression that the court is regulating them.
Chancery Lane stressed that this is important because the advice deserts created by cuts to legal aid have led to a growing group of McKenzie friends operating as profit-making businesses.
Whilst it is true the Bar Council and the Law Society opposed the cuts to Legal Aid that came through in 2012 - 2014, my recollection is that both bodies very much opposed the extension of Civil Legal Aid to allow contracts to be awarded to advice centres when this was first piloted and then implemented back in 1998/99 in the first place.
The terrain we are now in is that the fight against Legal Aid cuts was lost - and there a fair number of highly competent individuals with significant experience of representation who are no longer employed by community advice centres or local authorities because of a combination of legal aid and local authority funding cuts. Those individuals can either retrain completely (something not viable for many given their age - it certainly wouldn’t be for me if I were in the unfortunate position of no longer having a LA job) if possible - with a consequent further loss of expert help available to claimants or set up in some sort of self-employed basis or consortium with other similar individuals. And if claimants want to pay them (presumably from arrears of benefit gained?) then why should some other body stop them, given the alternative for may will be to have no advice or representation at all.
I would prefer it if claimants weren’t in the position of having to pay - and if those individuals were still in paid employment as advisers and representatives offering free advice - but the issues of whether claimants should be able to pay non-solicitors for advice if they wish and whether there should be regulation of those advisers are separate. In other words, it does not follow that if McKenzie friends are paid they must also be unregulated.
Some of this seems to me to be about who is getting paid as much as the fact that money might be changing hands.
[ Edited: 10 Jun 2016 at 10:14 am by past caring ]It’s a difficult one. The trouble is that at the moment there is very little preventing anyone from setting themselves up as a fee-charging McKenzie Friend - that could be an LSC caseworker with a decade of experience or it could be Joe Bloggs who has read the pertinent Wikipedia articles and thinks he knows whats going on. There are no regulators, no mandatory insurance schemes and no professional codes of conduct.
My understanding is that there is a particular problem in the civil courts (and family courts especially) of McKenzie Friends who blatantly have no idea of what is going on charging fees for services which are not helping (or even actively hurting) their client’s cases. Often they are advertised in misleading ways and overstate their qualifications. The trouble is that since the client is dealing with an uninsured sole trader or a shell company, there really is very little comeback against them.
Having said that, the representative bodies very much have form for jealously defending the protected status of the professions regardless of whether it is in the interests of the end users and it is difficult not to view what they are saying with a healthy amount of skepticism.
This is one of those areas where any action will be seen as an act of protectionism but there is a very real problem emerging which does have to be tackled. Past caring offers a good summary of what things look like in theory but, in practice, my experience is much closer to what Elliot describes. There ought to be room enough in the system for McKenzie friends to exist and indeed to assist competently. However, there are now too many jurisdictions where that is simply not the case.
In Greater Manchester we are aware of an organisation from outside the area who have received national coverage re: their approach to social security appeals and who reconfigure periodically so as to mitigate against such unwanted coverage. They appear uninterested in the merits of a case so much as prolonging it as a cash cow. They’ll mostly not turn up as McKenzie Friends even when they intimate to the claimant that they will. There is also an organisation which purported to be led by a “benefits lawyer” and which not only charges but clearly cherry picks. Anecdotally I’ve heard of them attempting to charge a significant amount of money to cover something like consultation time when a claimant asked for their appeal papers back in order to obtain advice elsewhere. Equally anecdotally I have heard that their brand of representation doesn’t necessarily reflect the level of expertise claimed via qualifications.
The concept of a “benefits lawyer” is an interesting one to say the least. What was the other one? Something like a “fully-trained advocate”? Trained in what and by whom to what standard and qualification?
These organised efforts aside, which in one sense could be seen as an inevitable consequence of Big Society nonsense, there are numerous examples of sole traders of hugely varying competence. Indeed I stepped in to do some voluntary workshops for a charity after I attended one run by a sole trader with the medical condition supported by the charity. I attended in the hope of learning something about the interaction between that condition and the benefits system and left somewhat bewildered as to how one person could get so much either garbled or completely wrong. I felt genuinely sorry for the person. Their medical condition made employment difficult and they had every right to play to their strengths. However, the public do need to be protected too.
[ Edited: 10 Jun 2016 at 10:32 am by Mike Hughes ]There’s undoubtedly charlatans out there. Equally, even though the horror stories will inevitably attract more attention than examples of organisations or individuals who do a good job, I do not doubt that there are more chancers than there are good apples - if only because the current system favours the former over the latter.
My point was really to question the motivation of the Law Society and Bar Council* and to point out that paying for advice doesn’t have to mean bad advice.
(*I will confess to some bitterness and elephantine grudge bearing in this. I worked under an LSC contract providing welfare rights advice from the inception of the CLS. I was also shop steward at my place of work. In the run up to the change from the ‘hours billed’ contract to the fixed-fee contract, I did all that I could to organise against it and to persuade others to do the same - and that included lobbying the management committee of the centre where I worked to campaign against the contract and to try to persuade other centres to do the same. To no end. At the eleventh hour, the Law Society decided that its response would be to get organisations to refuse to sign the new contract. We had a solicitor from a local firm on the management committe who was very much enamoured of this strategy and who demanded that the management committee adopt it - when I pointed out that the union had a right to be consulted before such a step was taken [CLS funding accounted for two thirds of the centre’s income) the solicitor had two responses - a) their firm was also going to refuse to sign [conveniently forgetting to mention that two thirds of their income was from fee-paying clients - and could be expanded] and b) management’s right to manage.)
The concept of a “benefits lawyer” is an interesting one to say the least. What was the other one? Something like a “fully-trained advocate”? Trained in what and by whom to what standard and qualification?
One of the quirks of our system is that whilst it is often a literal crime to describe oneself as a “solicitor” or “barrister” without the right qualifications*, calling yourself a “lawyer” is usually fine because it doesn’t specifically invoke either profession. Unfortunately the punters going to see this ‘benefits lawyer’ probably don’t see the distinction.
I would add as well that as far as I can tell, these proposals won’t touch on the Tribunal system where the “non-legal representative” has a specific and recognised function which makes the McKenzie Friend per se unnecessary.
I would add as well that as far as I can tell, these proposals won’t touch on the Tribunal system where the “non-legal representative” has a specific and recognised function which makes the McKenzie Friend per se unnecessary.
I fear; due to the issues that Mike aired above; that there may well be a desire to bring the Tribunal system within scope. Judge Jacobs for one has been calling for something similar for years and I can see his point. I’ll bet there are a good few district chairs that are sympathetic too.
I’ve picked up the pieces left behind by the organisations that Mike references through a social media group I’m admin for; the cowboys are loud, proud and unafraid of the shrapnel they leave in their wake.
Nearly Legal on a new McKenzie friend ‘marketplace’
Read that in their email at 4am this morning! Should ring a few cautionary alarm bells in Manchester too.
A 19 year old finding law so unexciting already that he does this does seem a likely candidate. The commitment appears to be to money rather than law. A fine example of the Dunning-Kruger effect. Due for a lifetime of disappointment.
Univ of Westminster:
“we encourage & support students developing their own enterprise / entrepenerial ideas”
May be tells us something about the pressures / purpose / direction of higher education these days - not an end in itself but a means to an end?
oh dear.
And the SRA don’t help by trying to reduce regulation.
the bottom line is that a qualified solicitor has to
1. pass the exams
2. do the training under supervision and be signed off on that
3. not practice without a practicising certificate (they check) which costs money
4. have PII insurance to a minimum value (£2mill cover per case, even if you never run any cases that would ever approach that value)
if the solicitor is negligent such that the client loses a money/whatever, the solicitor has insurance to meet the claim.
if the insurance won’t pay (e.g theft from client account) there’s a fund which compensates the client whose money has been stolen.
and we can be struck off for all sorts of things
all of that protects all clients. it’s similar for the Bar.
McKenzie Friends are wholly unregulated, uninsured etc and if they muck something up there’s no comeback (unless the losing client sues them in ordinary court, which only works if they have some assets that can be used o meet any damages awarded).
etc. etc.
being regulated costs money, which is one of the reasons we have to charge (quite apart from the need to keep body and soul together, pay the staff/rent/IT/etc etc etc…...
and Claims Management Companies suffer from the same defects….
There are two types of advice/representation - Good and bad.
I’ve seen both from either side of the debate. I’ve come across several instances over the last twelve months where practicing solicitors have not acted in the best interest of their clients’. The facade is that solicitors have the indemnity, and the professional standards that provide the peace of mind that if the solicitor is negligent, the client will be compensated. The reality, in my experience, is more akin to the solicitor is perceived by the client as being all knowing, and all seeing , and even where they get it very badly wrong, their client doesn’t know any better.
The fact is that bad advice/representation is merely that, no matter who delivers it.
That being said, I don’t believe non-solicitors should be charging fees at all in these areas. Maybe in by removing the ability to charge from non-solicitors, the clueless will disappear into the ether. The only system I am a fan of is the ‘preparation time orders’ utilised in the Employment Tribunals. At least there, the Judge gets to decide on merit.
It’s ok though, it’s all for charidee…..
The McKenzie Friend Marketplace (MFM), which hopes to help hundreds of law students find paid work offering legal services, has responded to criticism from practitioners by announcing that it will ban active students from providing legal advice – although they will be able to give clients other types of support.
It also revealed that half of its profits will go to charitable law clinics, and founder Fraser Matcham will himself use some of his profit from the enterprise to help create law clinics in remote parts of England and Wales.
McKenzie Friend Marketplace to ban “active” students from giving legal advice in wake of criticism
Mckenzie Friends SHOULD NOT CHARGE A FEE, there are many claimants who are vulnerable to these CHALATANS , people from abroad, people with mental health issues etc. we have a person in my area who gives ‘advice’ on benefits that person a menace and should be stopped, that person may charge people for all I know to represent them and if so that is tantamount to fraud . This is a welcome proposal and should be supported by all.
There are two types of advice/representation - Good and bad.
I’ve seen both from either side of the debate. I’ve come across several instances over the last twelve months where practicing solicitors have not acted in the best interest of their clients’. The facade is that solicitors have the indemnity, and the professional standards that provide the peace of mind that if the solicitor is negligent, the client will be compensated. The reality, in my experience, is more akin to the solicitor is perceived by the client as being all knowing, and all seeing , and even where they get it very badly wrong, their client doesn’t know any better.
The fact is that bad advice/representation is merely that, no matter who delivers it.
re solicitors - most don’t even get the option of looking at welfare benefits in their degree courses, and it’s certainly not part of the professional training course that follows the degree.
personally, i was lucky - at that time, Newcastle Polytechnic (now Northumbria) offered welfare benefits as an option in the degree course, and I took it - partly for political reasons, no doubt, but also because i could see that it would be important to know about it going forward.
and then in work i found myself asked to give advice which i could do. and now keep up my knowledge (albeit not as much as i used to….)
however, i think that’s rare and have no clue whether anyone offers it now.
the result is that most solicitors have no clue, of course - but should recognise that and refer people on. the trouble is, there’s often no where to refer people to. some firms employ welfare benefits people, of course, which is good.
and then there’s the criminal solicitors trying to deal with people’s benefit prosecutions but not knowing enough about benefits to be able to deal with them (we did that do death a few years ago on this forum…)
Yes Claire well said, I had a client last week who said she would go to see a solicitor to help with her ‘living together appeal as they are the experts, well we know how that one is likely to end up. but the issue of Mckenzie Friends charging a fee is not quite the same, there are plenty of organisations that give good benefit advice for free and in my experience tribunals are very good their job without a blood sucking “friend” taking part of a clients benefits from them. pS I too worked for sols doing benefit advice for awhile as the Firm had the insight to realise they needed some input from a benefit specialist rather than relying on leaflets from the dwp to advise their clients
The Judiciary has issued its consultation response ...
While the Judicial Executive Board (JEB) says that -
The JEB remain deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers. The statutory scheme was fashioned to protect the consumers of legal services and the integrity of the legal system. JEB’s view is that all courts should apply the current law applicable to McKenzie Friends as established by Court of Appeal authority.
... it concludes that -
The growth in McKenzie Friends has coincided with the period following the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The government has been reviewing the impact of the changes to the availability of legal aid. JEB conclude that the growth in reliance on McKenzie Friends, and particularly fee-charging ones, should be considered in the context of the impact of those changes. It is for the government to consider appropriate steps to be taken to enable litigants-in-person to secure effective access to legal assistance, legal advice and, where necessary, representation.
https://www.judiciary.uk/announcements/mckenzie-friends-consultation-response-published/
See also: Judges duck sweeping McKenzie reforms from the Law Society Gazette.