Have you heard the term “McKenzie Friend”? We explain what it means and why using a McKenzie Friend in legal proceedings is a little controversial.
If you are a self-represented litigant, you have the right to have a person attend court with you and support you in certain ways, although they cannot give you legal advice, nor can they address the court except in exceptional circumstances. Such a person is informally known as a McKenzie Friend. Their role is limited to helping you in ways such as expressing yourself to the court in a more coherent, professional manner, or to simply sit with you and provide emotional support, take notes, quietly make suggestions or propose questions. However, they cannot take on the role of advocating for you.
If as a self-represented litigant you want your McKenzie Friend to speak to the court, you’ll need to make an application to the court claiming exceptional circumstances (for example, having a language problem, a disability or being of old age). Permission is not always granted, and even if the McKenzie Friend is allowed to address the court, they may still be prevented from asking witnesses questions.
The use of McKenzie Friends has been more common in the UK and some other countries, but is also seen here in Australia. The name comes from a 1970 case in the UK, McKenzie v McKenzie, where a husband was assisted by an Australian barrister who wasn’t able to practise in England. At trial, the barrister was ordered not to participate. However on appeal, it was found the trial judge erred in preventing the barrister from assisting. During that case it was noted:
“Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.”
The Judicial Commission of NSW describes the use of McKenzie Friends in Australia as such:
“A McKenzie friend has no right to appear as an advocate, or to address the court on behalf of the unrepresented litigant. The role of such a person is confined to providing assistance and advice to the unrepresented litigant in conducting the case…”
It’s stated that “the use of a McKenzie Friend does not depend upon the court granting leave, [but] there is a discretion to prevent a person continuing to act in that capacity, for example, if that person is acting contrary to the efficient administration of justice”.
Why do people use a McKenzie Friend?
Issues surrounding access to justice and the affordability of legal representation have made the use of McKenzie Friends more common. Some people can’t afford a lawyer but still don’t qualify for Legal Aid. Changes to how the industry operates—for example, the relatively new use of unbundled legal services–have also impacted consumer behaviour.
But reasons may also be as simple as having an inherent dislike or distrust of lawyers, or believing that a well-intentioned friend with personal experience of the family law system will be able to help for free. So a self-represented litigant might see a McKenzie Friend as a good alternative to a lawyer – but is it?
Criticism of McKenzie Friends
There are several reasons why court users should be wary of depending on a McKenzie Friend to help them with their litigation.
Firstly, not all cases are suitable, as McKenzie Friends do not offer legal advice.
Then there is the issue of lack of regulation, training, accreditation and vetting—how can you tell if they are a fit and proper person to help you?
Further, they are often uninsured, which completely removes the consumer protections that professional indemnity insurance provides you. Professional Indemnity insurance is a “gold-plated service which comes at a price: it offers effective consumer protection but increases the cost of services”, but is vital as it can compensate you if you lose your case due to bad advice.
There have also been criticisms of undignified or other errant courtroom behaviour by McKenzie Friends, which can hurt your case, and there have also been concerns expressed that interest groups can attempt to hijack proceedings to pursue their own agendas.
The McKenzie Friend may be a personal acquaintance of the litigant, or they may be a free service provided by a university law schools or charities. But some “professional” McKenzie Friends do charge fees and these are more controversial. They are not regulated nor required to have professional indemnity insurance and they may stray into engaging in advocacy and providing legal advice. This self-regulation and blurring of the lines is regarded as dangerous, and prompts the calls for legislation, regulation or at least guidelines around their role.
Further, if a fee-paying McKenzie Friend is used, their fees can be high, meaning you won’t be making any savings if you can actually employ a junior qualified lawyer for a similar cost.
Legal practitioners understandably have doubts over the practice. Some go as far as describing McKenzie Friends as charlatans and shysters who think they are de facto lawyers and who only hamper the court process.
There is also criticism over the name McKenzie Friend–it’s not descriptive and therefore consumers often don’t understand the role and the fact that McKenzie Friends are not part of the court system. It’s suggested the name “court assistant” would be a better title, but this implies they are in fact part of the court system. And if they are to be a formal part of the system, they would need to adhere to disciplinary codes–and require insurance. Some stakeholders argue for a complete ban, but provided the role is appropriately confined, and the McKenzie Friend doesn’t receive payment, they surely have their value in supporting unrepresented litigants through the daunting court process.
Lawyers as McKenzie Friends
There have been cases where solicitors have essentially become fee-earning McKenzie Friends specifically to avoid regulatory costs, which allows them offer services at lower prices.
But industry experts believe that if a practising lawyer wants to support a person who can’t afford legal representation, they should really act in a pro bono capacity rather than as a McKenzie Friend. This is because lawyers are subject to ethical obligations to clients and have duties to the court. They represent their clients as officers of the court, and are subject to rules and sanctions that bind all lawyers.
Controversy arises when a McKenzie Friend is actually a lawyer, because it makes the ethical situation opaque. Does the court have any control over a lawyer acting as a McKenzie Friend? Does legal professional privilege apply between a client and a lawyer acting as a McKenzie Friend? What duties would such a lawyer acting as a McKenzie Friend owe the court, distinct from duties they might owe the client? Lawyers owe their first duty to the court, but who does a McKenzie Friend owe his allegiance to? Without being codified in legislation, there is a lot of uncertainty on these points.
Ultimately, it’s worth noting that even the support organisation McKenzieFriends.com.au says:
“It is recommended that self-representing persons and their McKenzie Friend obtain legal advice. The law, including Acts, Regulations, Rules of Court, Court Practices and Court Precedents can change without warning. …This is another reason to consult a lawyer.”
Do you need assistance from a family lawyer but would like to keep your costs as low as possible? Give us a call to discuss how we will achieve this for you. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
