Lay Legal Advisers
In the UK in 1970 a husband who could not afford legal representation in his divorce proceedings used an Australian barrister, who was not qualified to appear in an English court, to help him. The judge barred the Australian from sitting next to McKenzie at the hearing. McKenzie appealed this decision on the ground he had been unfairly denied help. The Court of Appeal agreed, and according to an article last week in the UK Guardian newspaper, “broke lawyers’ monopoly on providing legal representation”.
There is a healthy industry of lay legal advisers in the UK today. They are called “McKenzie Friends”.
Although anyone can call themselves a McKenzie Friend in the UK, there is today a self regulated body – Society of Professional McKenzie Friends Ltd.
They offer services to people representing themselves in court, at much lower cost than a solicitor or barrister.
According to the Society’s website McKenzie Friends help personal litigants by: providing moral support; taking notes; and helping with case papers. They also “quietly”give advice on points of law or procedure, issues that the litigant may wish to raise in court and questions the litigant may wish to ask witnesses.
Members of the Society of Professional McKenzie Friends Ltd are insured. They have law or relevant qualifications equivalent to A Level (Grade 12), or they have worked 20+ hours a week as a McKenzie Friend for 3 or more years. The Society offers an investigation and complaints procedure.
According to Barrie Hanson, Canadian courts have been asked to allow non-lawyer agents to appear for parties, but the exercise of this discretion, in jurisdictions where it exists, will been exercised rarely and with caution.
The use of McKenzie Friends in the UK has become so widespread, according the Guardian article, “… the judiciary is considering imposing regulations that will ban them from being paid in England and Wales”. A judicial consultation ‘Reforming the Courts’ approach to McKenzie Friends’ is now underway.
This is an issue the Canadian legal establishment would rather not see get any attention at all. However, I think ultimately something modeled on the McKenzie Friend role will have to become a reality in Canada.
My perspective is that of an experienced SRL who prevailed in the first of a series of court actions and who more recently, having acted for another person in bringing a complaint to the Law Society, challenged the result by filing a judicial review petition in her name.
The Law Society had not objected to my representation throughout the complaint process but objected vigorously to the prospect of me addressing the court in the JR. They tried to elicit from my associate information suggesting that I was receiving some kind of compensation so that they could then bring an action against me for the unauthorized practice of law. Such heavy-handed conduct reveals the true agenda, which certainly has nothing to do with serving the public interest.
What I would like to see is a law school design a program of instruction and accreditation suitable for people like me who would be willing to act, without compensation, in appropriate roles, including sometimes courtroom advocacy. I am not opposed on principle to the idea of such persons being allowed to charge fees, but I think we should begin with a role to which the law societies cannot object on the basis that it constitutes what the statutes define as the unauthorized practice of law.
I don’t think that trying to rely on family members or acquaintances to provide little more than moral support is going to accomplish much at all. If we are ever to address the access to justice challenge then we need to make some serious commitments.
SLAW readers might be interested in reading the National Self-Represented Litigants Project’s new resource on the McKenzie Friend – “Choosing and Presenting a Courtroom Companion” (https://representingyourselfcanada.com/2016/03/24/launching-nsrls-latest-guide-the-mckenzie-friend/).
NSRLP sees the widespread acceptance of the usefulness of MFs as an important and relatively simple step to assist SRLs in beinge more functional, centred and calm in the courtroom, where they are often anxious and intimidated. Presently Canada requests are only for a family membe or friend, not a paid assistant -although that may be coming.
Our MF Guide is based on interviews conducted last summer by Judith DaSilva, the author, with judges across Canada on their take on the concept of the MF. Comments as always are welcomed.