Is law student’s new McKenzie Friend business too much of a hot potato?

By definition a McKenzie Friend is not a legal professional. Traditionally they would be a friend, family member or other volunteer who provides practical and emotional support to an unrepresented litigant in court. But in recent years the concept has been extended to include McKenzie Friends who charge fees for their services. This has led to regulatory issues, as well as complaints from professional lawyers.

It was therefore not surprising that when Fraser Matcham, a second year law student, launched a business earlier this month, designed to enable aspiring lawyers and others to offer their services as fee-charging MFs, it caused a bit of a stir.

According to its website, “the McKenzie Friends Marketplace is a new, modern and innovative platform that connects litigants-in-person with McKenzie Friends. This platform acts as a voice, quasi-regulator and body to represent and promote McKenzie Friends, whilst also protecting litigants themselves and raising awareness of McKenzie Friends and the crucial services they can provide to improve access to justice in England and Wales.”

McKenzie Friends Marketplace is backed by two private investors and advertised as having the support of BPP University Law School as well as Westminster University where Matcham, the firm’s managing director, is studying. Those offering their services as McKenzies (who may or may not still be students, though students would charge less) would need to be members of the scheme, which means complying with a set of rules including a code of practice set out on the MFM website.

Nevertheless BPP on its own blog was upbeat about the venture, and seemingly unaware of any legal regulatory pitfalls, announcing: “A new online platform supported by BPP University Law School and the University of Westminster has been launched to enable aspiring lawyers to put their skills into practice with real-life court experience.”

However, that blog post has since been removed – possibly because of what happened next. Two leading legal bloggers, family law barrister Lucy Reed on Pink Tape and housing law solicitor Giles Peaker on Nearly Legal, identified a number of problems, including:

• The complete lack of supervision, or even training, of students participating in the venture;
• The use of MFM’s own account to handle fees (and thus hold client money), from which it then takes a 5 per cent processing fee and 5 per cent to 10 per cent commission;
• Lack of clarity over risks covered by professional indemnity insurance (in absence of clear professional standards to be met);
• Communications with clients only via MFM’s own communications system (raising issues of client privilege and data protection);
• Despite this, not yet registered as a registered data controller with the Information Commissioner’s Office (ICO);
• Lack of contract between client and MF covering eg duty of confidentiality;
• Lack of consumer protection for clients;
• Code of Conduct badly drafted and confusing

Reed suggests the colleges are partly to blame: “There is an increasing trend amongst the Law Schools of Higher Education establishments to devise, offer or support novel schemes that purport to ‘offer’ law students who attend their establishment some better experience, some more shiny star to put on their CV than the institutions they are competing so fiercely with.

And yet, says Peaker, “…the students will charge fees, and MM will take their cut. And the client has no realistic recourse if the student’s ‘legal advice’ turns out to be catastrophically bad… this is a disaster waiting to happen.”

The description of MFM as a ‘quasi-regulator’ prompted barrister Barbara Rich to tweet sceptically that this was akin to being ‘a little bit pregnant’. Either they were an authorised regulator or not.

In fact, the question of whether McKenzie Friends, particularly fee-charging ones, should be regulated is not a new one. In a report entitled Fee Charging McKenzie Friends, commissioned by the Legal Services Board and published in April 2014, the Legal Services Consumer Panel (LSCP) recommended that paid McKenzies should get their own trade association and be recognised as “a legitimate part of the legal services market” but that they should not require to be regulated.

More recently, in February 2016 the Judiciary launched their own consultation in which they proposed banning fee-charging McKenzies and changing the name for unpaid ones to ‘court supporters’. The consultation also invited views on whether rules of conduct for them should be formally codified into Rules of Court or remain governed, as they are now, by practice guidance: see Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881.

The name may be confusing to some, but seems (despite what the Judiciary consultation thought) to be well established. It dates from a case called McKenzie v McKenzie [1971] P 33, in which, as it happens, the friend was a barrister but from another jurisdiction (Australia) and so had no right of audience.

Another aspect of McKenzie Friends Marketplace that has caused concern is the role of the colleges, notably BPP, in supporting it. This was the subject of another blog, by Cardiff University law lecturer Dr Leanne Smith, on Lawyer Watch. She points out that law students are often encouraged to gain useful experience in legal work in order to boost their CVs before applying for training or pupillage. There is a risk, though, that students who are still learning the law could do more harm than good if they attempt to ‘learn on the job’ at the expense of clients too poor or desperate to go to real grown up qualified professionals.

She says: “students who work with real clients on pro bono schemes require intensive supervision and, often, direct assistance to ensure the work is of an acceptable standard. I doubt even the strongest undergraduate could offer something sufficiently valuable to a litigant to justify charging for her support…”

However, she also sees merit in the scheme as an undergraduate project and admires Fraser Matcham’s enterprise and initiative in setting it up. She suggests, however, that he drop his ‘hot potato’ until he has better experience and advice.

He does not appear to have taken that particular piece of advice; but he has responded to many of the criticisms in a press release, published on the company’s Facebook site, on 27 March 2017.

It confirms that it has applied to the Information Commissioner’s Office to register as a data controller and that MFM ‘does not see or have access to any of the messages’ on its ‘secure messaging system’. Insurance coverage is a mandatory requirement for all members for whatever services they provide. As to these, it says the Code of Conduct will be updated with a new clause: “prohibiting legal advice from being provided by student members that are active students. Those student members will still be able to vastly assist with multiple other legal services.

That may be felt to address the most serious dangers identified in the criticism, but the fact remains that proper training and supervision ought to be the base point for any endeavour involving anyone not fully qualified to practice law. If Mr Matcham is to continue with his brave enterprise, he will need to hone his advocacy skills to deal with the likely response of the qualified, regulated professional with which, to some extent, it is competing.

Paul Magrath is head of product development and online content at the Incorporated Council of Law Reporting for England and Wales (ICLR)