Thread by @nearlylegal

After a busy and eventfully uneventful day, I want to come back to this opinion piece in the Times criticising 'clamping down on McKenzie Friends'. Because I have some difficulties with the argument... thetimes.co.uk/article/clampi… (£) But relevant quotes in what follows. Sorry. Long.

Well, we've been talking about it long before the Wright case. But what is remarkable is how quickly regulation is ruled out here. 'Oh it would cost more'. Well yes, professional insurance does that.

Leaping from that to 'but that would be bad because then people couldn't afford even wholly unqualified legal services' is, well, assuming a hell of a lot. Such as whether there is much benefit in having access to unqualified legal services (which often aren't that cheap).

But then suddenly Citizens Advice and Law Centres are wheeled out, as if they are the same thing. They aren't, as I'm sure @LawCentres would agree. They are not for profits, under charity rules and with a specific exemption on restricted activities under Legal Services Act 2007.

They have skilled and qualified actual solicitors and advisors etc, etc. They are already regulated, and it would be trivial to except their position in any regulation of the 'McKenzie friend' realm. This is a red herring. Also 'a rare problem'? On what evidence?

And then the suggestion that the unfortunate client in the Wright case got redress through 'existing consumer protection laws'? No, it was a high risk negligence claim, and the odds of the client seeing any money of the award are frankly slim, because...

this was an unregulated, uninsured, unqualified 'legal services' provider. Which takes us back to the beginning, what good is the prospect of a negligence claim with no real prospect of recovery of damages and costs? I am genuinely surprised that Mr Passmore skips this point.

Yes it certainly could be argued that CAB and Law Centres are different from fee charging 'McKenzie Friends', on the basic grounds that they are different, in virtually every way. And advocacy is covered under the LSA 2007 exemption, so this is also a red herring.

And just who is suggesting a fee ban for McKenzies doing advocacy only? Granted that was a supposed element of the Judiciary consultation, but that is because they are Judges. Regulation or a ban should extend beyond advocacy.

And we can add some false equivalences to the argument. 'Oh it is the lawyers resisting it'. Well it is at least some of us lawyers that have to pick up the disasters caused by the unregulated, uninsured 'legal advice' market.

We see the damage caused, which Mr Passmore doesn't think there is any evidence for. Now, I am hugely, massively, in favour of an adequately funded 'free at the point of use' advice and representation sector. I deeply resent the suggestion that I am somehow against this.

I am not afraid of competition - there is quite a lot of work available in clearing up the disasters left by the unqualified and unregulated - and I very much want competent advice and representation to be available to as many people as possible.

But when fee charging MacKenzies and 'Legal Advisers' charge rates that are higher than legal aid pays solicitors or barristers, and that are roughly on a par with junior solicitor and counsel rates, it is hard to even see 'never mind the quality, feel the width' having any value

And I am afraid that using this as an excuse for saying that 'it is all OK, and existing consumer law will deal with the bad ones' is not only missing the point, (and wrong in law) but is abandoning any sense that people deserve competent legal advice and representation...

And that there should be recourse if things go badly wrong. As it did for the client in the Wright case. And others, some of which I've detailed on NL and on here. Unlike Mr Passmore, I don't think getting things cheap should mean getting them shoddy and risky without recourse.