Proposals to curtail the ability of ‘McKenzie Friends’ to recover fees in the wake of a successful court action were today backed by the Law Society of England and Wales.
Proposals by the Judicial Executive Board to prohibit non-professionals who charge for legal services from recovering fees for litigation or advocacy by inserting a ban into the rules that govern courts were backed by Law Society president Jonathan Smithers.
‘There are different types of McKenzie Friends. They could be family or friends, or pro bono scheme volunteers who may have some legal background; and then there are those who charge for their services, possibly selling an expertise they are not qualified to offer.
‘Prohibiting the recovery of fees will still allow judges to consider requests from McKenzie Friends to participate in court proceedings under the Legal Services Act 2007. But prohibiting McKenzie friends from recovering fees for litigation or advocacy strikes the right balance between respecting parliament’s will – that it is in the public interest for reserved legal activities to be conducted by a legal professional – while allowing judges to retain the flexibility to allow McKenzie Friends to litigate in exceptional circumstances.
‘Clients of fee-paid McKenzie Friends have no assurance of their legal knowledge and are left with no redress if things go wrong. They are not necessarily cheaper than solicitors, who are highly regulated and deliver a high standard of quality service. Our members have witnessed the damage done by the unscrupulous, so we very much welcome any steps that bring clarity to the support that a McKenzie Friend can give.’
Jonathan Smithers added:
‘Cuts to legal aid have left many people unable to afford professional legal advice when they need it. But it is wrong to say that the best way to mitigate the damaging consequences of legal aid cuts is to allow non-professionals, who do not need to meet any standards of knowledge or performance, and do not offer clients the same rights of redress if something goes wrong, to charge vulnerable clients a fee. Non-professionals who charge for legal services should not view such exceptional circumstances as being a business opportunity.’
‘Legal professionals must abide by an ethical framework that puts the needs of the client first. They also have obligations as officers of the court. McKenzie friends are not bound by these important professional responsibilities, and if they mislead their client there is no recourse. Those who can afford legal advice will always get better value for money by instructing a solicitor or other legal professional.
McKenzie Friends are non-professionals who offer their services in court proceedings and some, despite having no formal legal qualifications, charge for their ‘services’. The name McKenzie Friend name comes from a 1970 divorce case – McKenzie v McKenzie.