Judges’ reforms threaten the role of lay legal advisers

This article titled “Judges’ reforms threaten the role of lay legal advisers” was written by Owen Bowcott, for The Guardian on Wednesday 13th April 2016 07.30 UTC

Folake Ekunbayo ran out of money to pay divorce lawyers. As she struggled to turn herself into a litigant in person, she eventually, for a relatively small fee, hired a McKenzie Friend – a lay legal adviser – and settled the protracted dispute. She is not alone. As the cost of representation spirals and legal aid disappears, the role of these professional courtroom advisers who are not fully legally qualified has expanded to fill a cavernous gap in the market. Cheaper lay advisers have become so widespread that the judiciary is now considering imposing strict regulations that will ban them from being paid in England and Wales.

The term McKenzie Friend derives from a 1970 London divorce case. The husband could not afford representation but was provided with an Australian barrister – who was not qualified to sit in an English court – to help direct questioning. The judge barred the Australian from sitting beside McKenzie. The husband appealed, arguing he had been unfairly deprived of help. The court of appeal agreed and thus broke lawyers’ monopoly on providing legal representation.

Since then, the number of McKenzie Friends who charge for their services has expanded rapidly. There are estimated to be more than 100, of whom 28 are members of the Society of Professional McKenzie Friends who carry indemnity insurance. Ekunbayo’s experience is typical. Having spent £15,000 on lawyers, she could no longer afford to retain them. “I went online and checked out how to be a litigant in person,” she explains. “I bought books about how to run your own divorce. My house filled up with so much paper I couldn’t invite friends over. The law as an industry makes things so inaccessible. I’m not stupid; I’m an architect and have a PhD but I couldn’t make sense of what was important or not.”

In desperation she contacted a local professional McKenzie Friend. “She helped me prepare. In court, she was able to sit beside me,” says Ekunbayo.

Ken Walsh, an engineer, has also hired a McKenzie Friend to help him navigate his way through divorce. He approached lawyers but found most hid their costs, providing hourly rates but not an estimate of how long cases would take. “[My McKenzie Friend] sits beside me in court and whispers to me. My wife has a barrister and whispers into her lawyer’s ear. It’s the reverse image. The legal profession has made [the law] unnecessarily complex. It’s contrived to keep fees up.”

Both Walsh and Ekunbayo are clients of Nicola Matheson-Durrant of the Family Law Clinic in Windsor. With a law degree and 25 years’ experience as a McKenzie Friend, Matheson-Durrant came to prominence last year when she exposed a critical flaw in the Ministry of Justice’s online form for divorcing couples to record their assets. For years, thousands of supposedly more qualified solicitors, barristers and judges had failed to spot the error. Matheson-Durrant fears the proposed ban will criminalise those who hire alternative advisers: “Under the current rules, McKenzie Friends have no legal rights or standing in court. Courts have the discretion to allow them to do more for their clients. Anyone, however, can offer legal advice.

“Independent alternative legal advisers, pressure groups and charities fulfil the need those on low and middle incomes have for quality legal advice. I support freedom of the litigant in person to choose.”

But the judges’ proposed reform of court rules governing McKenzie Friends sets legal professionals at odds with advisers like Matheson-Durrant. The consultation closes on 19 May. The “provisional view” of the Judicial Executive Board, made up of the jurisdiction’s most senior judges, is that courts should adopt Scotland’s restrictive approach and ban payments.

“Reform should prohibit recovery of expenses and fees incurred by McKenzie Friends,” the consultation proposes. It also suggests using a more easily understood name, such as “court supporter”. But another McKenzie Friend, Nicola Ingram, formerly a legal executive, who runs the Family Advisory Bureau in West Sussex, says the proposals would mean those on low incomes will suffer. “Prohibition of fees will put us out of business,” she says. “[Judges] don’t seem to have a problem with McKenzie Friends but they have a problem with them charging.

“That will take out the qualified lawyers and just leave those doing it for fun. Local solicitors charge around £250 to £300 an hour; I charge £60 an hour. It smacks of legal protectionism. If you bring in too much regulation, you will have high costs.”

But the legal profession is firmly against allowing McKenzie Friends to charge. Law Society president Jonathan Smithers says: “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.

“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.”

There are also concerns that lack of professional status makes it easier for unsuitable people to act as McKenzie Friends. The chairman of the bar, Chantal-Aimée Doerries QC says: “McKenzie Friends are unregulated, uninsured and mostly unqualified. They should not be allowed to charge people for legal services.

“We have already seen one McKenzie Friend banned from court for intimidating witnesses and legal representatives, and another jailed for defrauding his clients.”

But Ingram points out that the legal profession is far from immune from inappropriate behaviour: in 2013, the Solicitors Disciplinary Tribunal struck off 75 solicitors for misbehaviour in England and Wales.

For Ekunbayo, having a McKenzie Friend was invaluable. “If I’d had a solicitor, the lawyers would still be arguing points of law. It would be a tragedy if that option was taken away. Not everyone can afford lawyers.”

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