A research study looking at the role played by Fee Paid McKenzie Friends in private law children cases has been published.

The study was commissioned by the Bar Council but was carried out by an independent team of researchers.

The researchers conclude that the picture is mixed – some positives and some negatives. They identify that much of the work done by McKenzie Friends is “advice” and support out of court, and that the question of Fee Paid McKenzie Friends asking for Rights of Audience (to address the judge as a lawyer would) is not coming up very often.

The report raises a question as to whether legal advice should become “reserved activity” i.e. a type of legal service which is regulated and which only certain people can provide. At present legal advice is unregulated, whilst “advocacy” (rights of audience) and “conduct of litigation” are both activities reserved only to regulated lawyers (or those with specific permission of the court).

There have been various reports of this research in the legal press, but so far it hasn’t reached the mainstream press. It will possibly trickle into the mainstream press over the last couple of days.

The Official Press Release on the Bar Council website, with quotes from both the Chairman of the Bar and the lead researcher can be found here, along with links to the report and the executive summary.

The Barrister Magazine give a pretty comprehensive summary here : New research shows paid McKenzie Friends operating mostly outside the courtroom.

Unfortunately, the Law Society Gazette go with the unhelpfully titled : ‘Nip rogue McKenzies in the bud’ – bar report. Not only is the headline not an accurate summary of the report (as it implies it is), but it isn’t even an accurate summary of the quote from the Chairman of the Bar that it is actually taken from. The Chairman of the Bar says (in the original press release) that McKenzies asking for rights of audience could be “nipped in the bud” without causing a problem for access to justice (because it isn’t happening very much anyway). He does talk about “rogue” McKenzie friends, but not in this context. So the opening sentence in the article “‘Opportunist and rogue’ paid McKenzie friends can and should be ‘nipped in the bud’, according to research for the bar due to be published today” is just not accurate.

Similarly, the sentence : “According to Andrew Langdon QC, chair of the bar, this could mean that problems experienced inside court may only be the ‘tip of the iceberg’ of the overall impact on the legal profession” is also not entirely accurate. When Andrew Langdon uses the term “iceberg” he is talking about the proportion of work carried out in court compared to out of court – not the size of any “problem” for either the legal profession or consumers of legal services. Here is the full sentence from the press release which has got mangled :

“It is particularly interesting that the courtroom… is not primarily where those who pay them are receiving their services today. In that sense, what we see in court represents the tip of the iceberg.” 

The Gazette also inaccurately state that :

The report identified three main types of fee-charging McKenzie: business opportunists; rogues who behave inappropriately; and family justice ‘crusaders’, who take up the role following their own bad experience in the family courts.

In fact the researchers identified five overlapping types of McKenzies, not three – and crusader and rogue (2 of the 3 identified by the Gazette) were not much in evidence at all.

The Chairman of the Bar Council is reported as saying (as in the press release) that some McKenzie Friends charge more than a junior barrister – but in fact there is some tension between this position and the report, which concludes that McKenzie friends charges were comparatively cheap.

Overall, the Gazette piece tends to emphasise those aspects of the press release and report which raise concern rather than those which reassure.

The Solicitors’ Journal report that : McKenzie Friends tread ‘fine line’ providing non-legal advice – What it means to conduct litigation is not clear, researchers find.

A blog post from our Lucy Reed (in her personal capacity) can be found here : Tip of the iceberg? You don’t say… the McKenzie Friend research.

We will update this post if further significant reports emerge.

Update : Legal Futures report here.

Feature Pic : dossier by Frederick Bisson on Flickr (Creative Commons – thanks)