Cowboys of the wild west? — Some context on the influence of fee-charging McKenzie Friends in family law

By Dr Leanne Smith, Senior Lecturer in Law (School of Law and Politics, Cardiff University) and Dr Emma Hitchings, Senior Lecturer in Law (University of Bristol Law School).*

© Christopher Dombres

In mid June 2017, the report of our Bar Council commissioned research on fee-charging McKenzie Friends in private family law cases was published (the full report can be accessed here and an executive summary here).

One of the report’s key messages is that we found little evidence of McKenzie Friends seeking to exercise rights of audience on a regular basis and plenty of evidence that the bulk of the work done by McKenzie Friends is done outside of court. The work McKenzie Friends do in court, we said, is ‘the tip of the iceberg’. This was the finding that the Pink Tape blog outlining Lucy Reed’s perspective on the research focused on, indicating that it was not at all surprising. We hope we can be forgiven here for indulging in a few words in defence of the utility of the research.

We readily accept that many in the legal professions have been aware for some time that paid McKenzie Friends operate predominantly outside court, but research has an important role to play in interrogating anecdotal evidence and providing more systematically derived evidence in order to validate or debunk it.  This is no less true because perceived experience is validated by a set of results. In this instance, our hope is that the findings of the research will function as a turning point for discussion on the subject of fee-charging McKenzie Friends in a way that the observations of some professionals who encounter them has not. In addition there are, of course, some more granular observations that we consider important buried in our report, though we will resist spoilers for those who haven’t yet finished reading it…

In her post, Lucy expressed some disappointment that the remit of the research was limited in such a way that it failed to get to what she perceptively identified as the ‘real meat’. That is:

The “advice” before the hearing that colours the behaviour and responses of a litigant in sometimes imperceptible and sometimes oh so obvious ways – but always in ways which are difficult to deal with, because the whisperer is unseen and his advice can only be guessed at.

As far as researching transformations in the provision and consumption of legal advice goes, we share the view that there are deeper revelations to be had by exploring what is largely new and unseen (and paid McKenzie Friends are neither of those things). Our research project was indeed designed with a view to exploring what McKenzie Friends do in court. It seems likely that the Bar Council commissioned it with as much concern for the consequences that incursion of McKenzie Friends into the realms of advocacy might have for barristers as for the broader consequences for access to justice. Understandable as that may be, this is an area in which the legal professions, we feel, have refused to see the wood out of jealous regard for the trees. To worry over the way in which courts deal with paid Mckenzie Friends, and vice versa, is to miss the important point that, as Lucy notes, ‘litigants are most vulnerable to exploitation and bad advice long before they come into a court room’.

This observation taps into, but does not fully capture, a broader problem related to how individuals access and use advice about private family disputes in a world that is a) post-LASPO, and b) characterised by online exchanges of information and experience. One of us has previously written of how this convergence of trends has created a sort of Wild West, in which potential litigants, either unable to afford professional legal advice or unable to discern their need for it, might roam the internet and happen upon all sorts of information of doubtful pedigree and utility. The consequences are potentially far reaching, and likely to manifest in both the solutions to family problems that are constructed by those who never approach the courts and in the perceptions of family law and family justice that those who do use lawyers and the courts bring with them.

So where do paid McKenzie Friends fit into this landscape? They are in a sense emblematic of the Wild West, or at least the thrust of discussion among legal professionals and researchers to date has often cast them as such. Suggestions that their work ought to be curtailed have been made by the Civil Justice Council (which concluded that courts should be reluctant to extend rights of audience to them, see p 54 here), in the Lord Chief Justice’s consultation on Reforming the courts’ approach to McKenzie Friends (which proposed that they be precluded from recovering fees for in-court work), and in the conclusion that the Chairman of the Bar drew from our research (i.e. that their work ‘can and should be nipped in the bud’). All this generates a sense that McKenzie Friends are the maverick outlaws of legal advice and support provision –  the cowboys of the Wild West.

The concerns are not entirely unjustified, of course. As our research notes, certain aspects of the work and practices of fee-charging McKenzie Friends are problematic. Even some good McKenzie Friends would do well to sharpen their business practices to serve the interests of their clients. Lucy noted the challenges posed by McKenzie Friends who ‘caution against trusting, believing or engaging with lawyers’, so that litigants are ‘primed with suspicion’. Although we saw little evidence of such behaviour in our study, we know that it exists. Recent research by Angela Melville (accessible here – subscription required) has identified problems with the combative and inflammatory tone struck by some McKenzie Friends on social media platforms, and we ourselves have seen social media accounts in which individual McKenzie Friends repeatedly denigrate the family justice system.

Such approaches are profoundly unhelpful, potentially harming litigants’ prospects of successful conflict resolution and also doing reputational damage to McKenzie Friends as a group. Those McKenzie Friends who are keen to see the development of cohesive and respectable standards of practice would do well to consider measures that might position McKenzie Friends more clearly as useful contributors to the family justice system, rather than enemies of it, and marginalise the behaviour of some of their less constructive peers.

However, notwithstanding the outliers, as a group, it could be argued that paid McKenzie Friends represent the tamer end of the revolution in legal advice and services. This brings us to the main point of this blog. Even if they are sometimes problematic, McKenzie Friends are categorically not the lone cowboys of the unregulated legal advice arena. As such, we respectfully suggest that even Lucy’s ‘unashamedly… broad and unconventional definition of McKenzie Friends’ cannot explain ‘the risk and prevalence of actual bad experiences that are likely to be befalling litigants outside court’. The creep of unregulated legal advice is far more pervasive and insidious than any definition of McKenzie Friends could be stretched to cover.

The most obvious contenders for attention are the handful of for-profit, unregulated online legal series providers that currently deal with some 10-13% of those going through a divorce. (LSB, 2016). These online platforms largely deal with uncontested divorces and handle processes rather than disseminating advice, though there are nonetheless some concerns related to their business practices (see LSB 2016, chapter 4). More importantly, however, they rely on search engines to alert potential clients to their services and what this should alert us to is the high volume of individuals turning to the internet to find information about family disputes.

And what type of advice and information might they encounter? Online legal services are likely to represent the thin end of the wedge. Recent years have seen a proliferation of websites carrying information of potential relevance to those embroiled in family disputes. These websites are extremely varied in purpose, content and audience and some early research by Leanne Smith revealed that it is not uncommon for information to be misleading, inaccurate and out of date. Some searchers will happen upon misinformed but dogmatic news reports, or information from another jurisdiction, and only a minority will have the digital or research literacy skills to enable them to make judgements about good and bad sources of advice and information. (Those of us who teach know that even relatively intelligent and educated law students don’t always make the soundest possible judgements about which online sources are reliable and which aren’t). Moreover, some research from technologists and cognitive and behavioural psychologists is exploring whether a sort of ‘machine heuristic’ exists, leading people to attach greater credibility to information gleaned via a machine than to information gleaned elsewhere

One of the most commonly used categories of online information and support is likely to be the chat forums hosted by online communities of experience – think Mumsnet, Netmums and their like. Many use discussion forums to glean information and seek advice and many more are willing to supply this information and advice – with or without the knowledge base to do so. A quick search on any given day will reveal a range of active discussion threads of relevance to a justiciable family problem. The responses range from eminently sensible to inflammatory (‘He is a wanker, end of’), to unrealistic (‘just ring the court and get a letter saying you can take them abroad’) and simply inaccurate. Of course, people have always sourced some advice and information informally from friends, relatives and colleagues with direct or vicarious experience of family breakdown and/or the family courts. In terms of understanding what’s changed we have much to learn about what role, if any, the crowdsourcing of information online plays in influencing perceptions and expectations of the family justice process.

But there are reasons to believe that online communities of experience might be particularly influential. One reason is that they have the capacity to generate, rapidly, a mass of responses that lean in a particular direction (and given the shared interests and identities of those engaging, those responses are quite likely to vindicate an original poster’s position). The ‘availability heuristic’, a well-recognised phenomenon in behavioural psychology, would suggest that exposure to a mass of supporting opinions and stories is likely strongly to colour views on what is ‘right’ or ‘normal’. This is something that would merit multi-disciplinary research. There is also further research indicating that group and shared identities can operate in online discussion forums in ways that engender high levels of trust in the information shared within them.

Though the potential manifestation of such trends has yet to be explored in the context of online legal advice, it is not unreasonable to hypothesise that online sources might be the murky influence that is discerned lurking in the shadows by some legal professionals. Primed with information gleaned online, it is almost understandable that litigants will mistrust a lawyer who sits in front of them contradicting what they ‘know’. The point here is that the work of fee-charging McKenzie Friends is the tip of an iceberg in a way that is not identified in our research report. It’s the tip of an ever-growing, ever-elusive iceberg of unregulated, unqualified information and advice consumption on the part of litigants. If the research report, limited in scope and revelation as it is, stimulates discussion and investigation of the full breadth of the challenges posed by the general ‘de-legalisation’ of family law advice, it will have been worthwhile.

* This post was first published in Pink Tape — A blog from the family bar on 22 June 2017.

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