The recent three year prison sentence imposed on a Bedfordshire man who posed as a McKenzie friend to receive more than £5,000 from clients has once again thrown into the spotlight one of the main shortcomings of our current legal system – namely the willingness of the public to employ unqualified or semi-qualified people to assist them so as to mitigate the cost of legal proceedings.

The arguments for and against the use of McKenzie friends have been well rehearsed elsewhere – not least in the paper produced by the Legal Services Consumer Panel entitled “Fee-charging McKenzie Friends“.  On the plus side they can help to enable wider access to justice by allowing those who could not normally afford a lawyer to have confidence to take matters to court and, where competent McKenzie friends are used, help to ensure the smoother running of the court process.  However, on the negative side there are risks that arise from the absence of the protections to which regulated professionals are subject, the potential for poor quality advice, the lack of a wider understanding of the issues involved and the possibility that the McKenzie friend will have their own agenda – for example espousing a cause – which will influence the support they provide.

Despite the problems which McKenzie friends pose the Legal Services Consumer Panel has come out in favour of them and has stated in its report that “Fee-charging McKenzie Friends should be recognised as a legitimate feature of the evolving legal services market.”  To support this they have made suggestions that include:

• The provision of education and advice directed towards litigants in person setting out the benefits of using a McKenzie Friend
• A white label consumer guide on McKenzie Friends should be produced, with the assistance of Law for Life, for use by the advice sector, and
• There should be consistent use of CVs, notices or other simple tools that can help assess the credentials of McKenzie Friends when considering applications for a right of audience to be granted.

They have however stopped short of recommending any form of regulation of McKenzie friends, suggesting simply that they should form their own “trade association”.

The message that law firms should, therefore, draw from this is that the McKenzie friend – or if not the McKenzie friend  some other form of non-professional support – is here to stay.  The cuts in legal aid and other forms of litigation funding have deprived many of the opportunity to instruct qualified legal professionals in the way in which they would previously have done.  But does that mean that the established professionals should simply hand over the work to the unregulated sector?

The simple answer to that question is not necessarily, but if firms are to fend off yet another potential assault upon the work that they do and their profitability, then they are yet again going to need to look at alternative methods of working.  Yes, this is something that has been heard over and over in the past every time some new method of legal service delivery comes along.  Unfortunately just because it is a much sung refrain does not mean that it is any less valid.

Unbundling

One approach in particular that firms may need to consider is that of unbundling – not necessarily in relation to all of the work they do but as something that they offer alongside of their more traditional services.

Unbundling is by no means new and indeed many working in the family law sector have already embraced it. Unbundling involves firms in carrying out what the Law Society in its unbundling practice note describes as the “provision of discrete acts of legal assistance under a limited retainer” as opposed to the traditional model where the solicitor would undertake all or most aspects of a matter from inception through to conclusion.

The extent to which you as a firm “unbundles” will depend upon the type of work you do and the extent to which you want to be involved in a “pick-and-mix” approach to legal services.

Thus, unbundling can come in a wide variety of guises including:

• Dealing only with one particular part of a transaction, for example, drafting a divorce petition or advising on quantum in relation to a claim;
• Providing self-help packs that individuals can use to carry out a particular process themselves;
• Checking through documentation to ascertain if it is adequate for the purpose;
• Providing on-line drafting facilities; or
• Providing advocacy in a court hearing or providing someone with court experience to act as a form of McKenzie friend.

However, just because the firm has chosen to provide unbundled services does not mean that its responsibilities to the client will have reduced.  For this reason, therefore, it is vital that firms pay close attention not only to what they are doing for the client but, equally as importantly, to what they are not doing.

Thus, if the firm undertakes a limited retainer then they should ensure that the client is aware not only of what the firm will do, but also what it will not be doing that it would have done had the client entered into a traditional retainer.

The fact that a firm has a limited retainer does not limit the duty of care.  The principles set out in the SRA Code of Conduct provide, inter alia, that a solicitor must “act in the best interests of each client” and that “they provide a proper standard of service” to clients.  Those Principles are not negated by the mere fact that a limited retainer is operating.  Moreover, many of the Outcomes set out in Chapter 1 of the Code will also apply including:

• Outcome O(1.5) – the service you provide to clients is competent, delivered in a timely manner and takes account of your clients’ needs and circumstances;
• Outcome O(1.6) – you only enter into fee agreements with your clients that are legal, and which you consider are suitable for the client’s needs and take account of the client’s best interests; and
• Outcome O(1.12) – clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them;

Thus, even though the retainer may be limited, the scope of the solicitors’ duty may not be. That is why ensuring that the client understands both that which is being done and that which is not being done is vital.  If as a solicitor you feel that the client either does not understand the nature of the limited retainer or does not appreciate the consequences of his or her actions then the limited retainer should not be entered into.

A further danger lies in the solicitor’s own understanding of the client’s situation.  There is a danger that in acting in part only of the transaction the solicitor will not be fully aware of all of the facts that are relevant or that the client may actually be keeping back from the solicitor facts that are germane to the matter.  Those who have doubts about the accuracy or completeness of information provided should, therefore, either seek further clarification or should decline to represent the client.  Clear notes should be kept not only of what the solicitor is told but also of any concerns as to information which he or she thinks the client is withholding. This becomes especially important in relation to providing limited services in court, particularly where the client has withheld information from the solicitor because there is an intention to mislead the court.  Indeed any firm which provides, for example, advocacy services only should ensure that they do not go on the court record as acting solicitor.

A more in depth exploration of the issues involved in unbundling legal services can be found in the Law Society’s practice note on the topic (http://www.lawsociety.org.uk/support-services/advice/practice-notes/unbundling/) where you will also find specimen client care letters.