Every so often on this blog, I depart from the many topics I usually cover, relating to family law matters, to discuss wider issues.
This time, the wider issue in question concerns a potential future change to legal services, which may or may not include the requirement for McKenzie Friends to be regulated or to undergo some form of registration.
This change has been proposed as part of the Independent Review of Legal Services Regulation (IRSLR), in the form of a Final Report of the IRSLR written by Stephen Mayson in June 2020.
The report is around 300 pages long and discusses recommendations for changes to legal service provision in detail.
But in relation to McKenzie Friends, the report discusses specialist accreditation, consistency in judicial practice (in other words, consistency in what different judges allow McKenzie Friends to do), registration, competence, consumer protection and a common code of conduct.
I have read the sections of the report relating to McKenzie Friends and there is nothing in there that I disagree with.
My reasons for supporting the regulation of McKenzie Friends
There are a number of reasons why I support the regulation and registration of McKenzie Friends, as covered in the Mayson report.
Before I share these reasons I want to highlight that these are my own opinions, and may differ to those of other McKenzie Friends.
Improved choice for litigants-in-person
At the moment, there is no clear picture of what regulation might look like, but it is likely to involve some form of legal register of all fee-paying McKenzie Friends and it may also include a requirement for McKenzie Friends to have an accreditation in the areas of work we cover, to demonstrate our knowledge.
This is a good thing, in my view, and I know that when I first set myself up as a fee-charging McKenzie Friend, this is precisely the sort of thing I was looking for. It would give users of our services (as well as courts, solicitors and barristers) easier access to us, from a single, approved source, according to our area(s) of expertise.
Drive up standards for litigants-in-person
Linked to the above, the accreditation element could also help to improve standards by making it harder for less desirable McKenzie Friends to continue to operate.
For example, the report made reference to competence levels and to those former members of the legal profession who set themselves up as McKenzie Friends, after having been struck off.
Existing McKenzie Friend organisations may be called upon to work alongside a future regulatory body, on accreditation and/or on a centralised register.
Remove the necessity for endless McKenzie Friend form filling
This is a particular bugbear of mine, particularly when I have been to the same court with the same client in front of the same judge numerous times and am asked to fill in a McKenzie form every single time (and some courts also require a CV as well as a completed form).
Being relieved of this (albeit small) task for in-person hearings means that I would be able to spend less time running around trying to find the usher who has access to the right form and then trying to hunt down the same (overworked) usher to hand him or her said form (duly completed) before being called into the hearing. Being freed up would allow me to concentrate on assisting my clients with their cases during a time of already heightened stress.
Fewer difficulties with or for judges – plus less confusion and contradiction
Every judge has his or her own way of dealing with McKenzie Friends from the downright rude to the highly personable, but that aside, some judges are happy to allow McKenzie Friends to carry out ‘reserved activities’ such as, addressing the court, while other judges will not entertain it and will keep a watchful eye on the McKenzie Friend throughout a hearing; as though primed for the inevitable McKenzie Friend transgression.
Regulation would probably help to provide that ‘stamp of approval’ and quell judges’ fears, while helping litigants-in-person to know what to expect, rather than having to wait and see which judge is sitting and what that particular judge will or will not allow.
And regulation would make all the difference, to a system that is steeped in historical rituals and ill-equipped to deal effectively with the surging numbers of litgants-in-person.
Clearly establish the roles within the legal environment
Finally, I think that regulation could help to ease the tensions between members of the legal establishment and McKenzie Friends.
In particular, it would end the vitriol that is sometimes directed at McKenzie Friends by some members of the legal profession; something to which I myself have been subjected.
It remains to be seen what changes may be introduced for McKenzie Friends as a result of Stephen Mayson’s report, and I will keep you updated when I find out more.
But, to use a well-worn phrase, the devil will be in the detail.
Copyright © Going to Court Alone – Debbie Thomas