Digital McKenzie friends’ advice ‘biased’

A number of McKenzie friends have been found to be giving biased advice online. A McKenzie friend is someone who assists court users by providing support, but they cannot represent clients, manage proceedings, speak in court or act as an agent.

An academic research project found that online digital advice given by McKenzie friends was biased, misleading and “anti-court”. A recent study undertaken jointly by Leeds Law School and Birmingham City University concluded that McKenzie friends were giving biased and misleading advice digitally.

The researchers examined at least 170 threads on various Facebook groups and other online forums by 30 different McKenzie friends. These all concerned public or private family law issues involving children. The posts were analysed using specialist ‘corpus linguistics’ software which looks specifically at the use of words, language and tone in posts.

The study focused particularly on the accuracy and quality of advice given online and found that vulnerable litigants in person are being given biased and misinformed advice. Its finding included:

  • The online advisors were found to often give biased advice “and suggestions reflecting personal anti-court and anti-social services”.
  • Parents were advised to ignore (or even act against) the advice of lawyers, suggesting courts were institutionally unfair.
  • On three occasions parents were advised to write their own statement instead of following specialist legal advice.
  • The use of words describing the family courts and social services as ‘gender-biased’ and ‘disgrace’.
  • Just one positive description of a judge in the posts.

Of equal concern was that the research revealed many parents were dealing with the courts while experiencing mental health issues, domestic violence and confusion over the legal system. The conclusion is that there should be a framework in place to ensure transparency of McKenzie friends and the advice they provide.

Dr Tatiana Tkacukova of Birmingham City University, who led the research, says: “The increase in people representing themselves in court means that many parents are struggling to navigate the system while seeking to understand the way courts, social services and the legal system works.” She highlights how the “negative portrayals of the courts” combined with advice to ignore specialised legal advice shows “a worrying trend towards personal viewpoints and agendas clouding impartial and objective support”.

Cuts to legal aid have seen a major rise in the number of those acting on their own behalf in court, with the likely result that they turn to McKenzie friends for help.

A worry

Worrying conduct, shocking and unprofessional standards of work or assistance, poorly written documents and misunderstanding legal or procedural principles have all been reported anecdotally from various quarters.

Last year, an unqualified individual who held himself out to be a competent legal profession when advising a 70-year-old man in a medical negligence claim, was ordered to pay more than £260,000 in compensation to the client. The High Court ruled he owed a duty of care to the client as he had claimed to be an experienced legal professional.

The then lord chief justice called for parliament to ban McKenzie friends charging for their services but this has not happened. The status quo is that McKenzie friends are unregulated, do not have to be legally qualified and do not have to be insured – and can charge for acting.

That’s not to say all McKenzie friends are unqualified, unregulated and unprofessional. The Society of Professional McKenzie Friends (SPMF), for example, was set up in 2014 and currently has 26 McKenzie friends in membership. But to be a member of the SPMF, the individual must:

  • be professionally regulated, for example, a solicitor or barrister; or
  • have a law qualification or other qualification relevant to their field of work (which is equivalent to at least A-Level); or
  • have worked for at least twenty hours a week as a McKenzie friend for at least three years.

LIPs

The rise in the number of litigants in person means a greater demand for the services of McKenzie friends who, of course, charge substantially lower than solicitors and barristers (SPMF members, for instance, charge between £40 up to £125 per hour).

In the family courts alone, at least one party is representing themselves in more than 80 per cent of private cases.

A case for regulation

Back in 2014, the Legal Services Consumer Panel rejected statutory regulation in favour of self-regulation. However, the controversies surrounding McKenzie friends continue to simmer and could rise to the surface if reports of unprofessional conduct continue.

Against that background, calls for a regulate framework for McKenzie friends are also likely to be repeated, though there is the argument that if you want a regulated professional to assist you in court – why would you not want a qualified lawyer?

Legal aid is the elephant in the room: if legal aid had not been stripped right back would there be a demand for McKenzie friends? Perhaps the solution is to deal with the root problem – the financial cost of access to justice - by bringing back legal aid for all who need legal advice from qualified lawyers.

A solicitor wrote on Twitter: “I’m dealing with a McKenzie friend who appears to think he’s the Lord Chief Justice. If you’re a lay person who thinks an unqualified rank amateur is cheaper, remember: good advice may be expensive, poor advice will cost a fortune.”

The problem, however, is what may be considered to be a false economy remains the only option for some individuals until change is effected.

But is it always a case of ‘you get what you pay for’? Regulation of solicitors and barristers does not prevent unprofessional conduct on the part of lawyers.

Likewise, not all McKenzie friends deserve to be tarred with the same brush. Some may be biased, many unqualified - but the reality is there are individuals who have to turn to them in a desperate need of support.

What does the Law Society think? It has campaigned for the restoration of legal aid for early advice, which would save a number of legal issues from escalating into costly court cases (and the purported need for McKenzie friends). Until the Ministry of Justice has come to a conclusion on the Society’s proposals little is going to change in the short term.

Until the elephant in the room is taken seriously by parliament, the system has created a need for McKenzie friends.

 

 

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