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Non-legal professionals should not be allowed to recover fees: UK Law Society

10 June 2016

McKenzie friends are not legal professionals and should not be able to recover fees, says the Law Society of England and Wales in an ongoing debate in that jurisdiction about the propriety of paid non-lawyer advocates.

The Law Society's President Jonathan Smithers has spoken out strongly against paid McKenzie friends, warning that the UK's legal regulators were wrong to suggest recently that legal aid cuts could be offset by unleashing non-professionals on the courts.

In February, the United Kingdom's Judicial Board issued a consultation paper proposing reforms to existing guidance for so-called "McKenzie friends", as a response to rising numbers of litigants in person who, they reported, were regularly accompanied by and sometimes were sought to be formally represented by a McKenzie friend or non-professional assistant.

Both the Legal Services Board and the British Solicitors Regulation Authority have responded by claiming that the case to ban fee-charging McKenzie friends has not been made, and doing so might leave LiPs without recourse to assistance in court.

But, the Law Society says, it would be wrong 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".

"Cuts to legal aid have left many people unable to afford professional legal advice when they need it," Mr Smithers acknowledged, but said "non-professionals who charge for legal services should not view such exceptional circumstances as being a business opportunity".

He says non-professionals who charge for legal services could effectively be preventing from recovering fees for litigation or advocacy by the insertion of a ban into the UK's court rules.

"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," Mr Smithers says.

"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.

"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.

"It is disappointing to see the LSB and SRA promoting the false assumption that fee-charging McKenzie friends are cheaper than lawyers. This is not automatically so, and people who need legal advice should enquire about the services local solicitor firms can offer them."

The Law Society in its full response to the judicial consultation paper also backed replacing the term McKenzie friend with "supporter".

Last updated on the 16th September 2019