The first thing we do, let's kill all the lawyers

Whether a world without lawyers is likely to be good or bad is a matter for speculation for the time being, although after April 2013 we will certainly see a different legal services landscape.

In today's legal market I have noticed that a new world is emerging in which there seem to be far too many "almost lawyers", some of whom haven't quite finished the academic stage of training, others who have completed the bar exam/LPC and in all cases none of whom are answerable to a Regulatory body as they haven't completed the final stage of qualification.

This sudden increase in unqualified people in court lead to me to undertake some research in the area.  There have been two recent articles about this matter, neither of which has touched upon the field of Family Litigation but the principles seem to be broadly the same. Firstly District Judge Hill wrote an article in the Law Society Gazette, which sets out a Civil case in which he refused to hear an unqualified self employed agent. The agent had undertaken a Law degree and had passed the LPC, the Judge determined that the agent didn't have rights of audience and the claim was struck out. The second article in Legalfutures also deals with the same issue of an agency who were conducting reserved work.

Rights of Audience

The  "almost lawyers" who are the subject of this article, are people who are taking on legal work, without any form of supervision, without affiliation to a firm or set of chambers.  Some of the legal work in question involves the preparation of paperwork to assist people who are in the process of getting divorced, going through Financial Order proceedings or even Children Act proceedings, I will come back to that type of work below. However, I am concerned that a number of these unqualified "almost lawyers" are turning their hand to a bit of advocacy, ostensibly to get some experience in the hope that it will help them to secure the training that they need to qualify.

 In the case of Francis & Ors v Barton Bridging Capital Ltd & Anor, [2010] EWHC 1525 (Ch); Mr. Justice Morgan was faced with a similar problem, not directly with reference to an "almost lawyer" but a totally unqualified person who wanted to appear as an advocate; he said

"In my judgment it would be undesirable for a sub-industry to grow up, with persons acting as advocates, charging for their services, when they are not qualified as solicitors or barristers, so that their clients may be getting a poorer quality of service than the clients understand, and further, such persons are not regulated by professional bodies. Regulation by a professional body in relation to someone acting as a solicitor or barrister is a matter of the greatest public importance, whereas someone acting as an advocate, charging for his services and free from regulation would be, in general terms, a matter of grave concern."

The Advocate in that case was not even a part qualified lawyer but had been given the right to address the court in the past on an ad hoc basis but was not permitted to do on the last occasion or in the future conduct of this particular case.  Although the Judge focused in part on the question of payment, he took into account a number of other factors in the full Judgement.

Legal Services Act 2007 - Introduced on 1st January 2010.

Part 3 - Reserved Legal Activities, these are activities which can only be carried out if:-

(a)the person is an authorised person in relation to the relevant activity, or

(b)the person is an exempt person in relation to that activity.

This list of reserved activities is fairly extensive but for the purpose of this article it includes the two elements mentioned above,

(a)the exercise of a right of audience;

(b)the conduct of litigation;

Who is authorised?

Section 18 - a person is authorised by a Regulator or if he has a License under the statutory framework.

Who is exempt?

Section 19 deals with those persons who are exempt (and can therefore carry out the reserved activities).

For the Legal Profession the right to conduct a reserved activity comes from Schedule 3 section 4:-

(a)the name of the person is on the roll kept by the Law Society under section 6 of the Solicitors Act 1974 (c. 47), or

(b)the person has been called to the Bar by an Inn of Court.

Reserved Family Proceedings

In the article by DJ Hill he considered the ability of a person to conduct a reserved legal activity, such as advocacy, under the provisions of Schedule 3 (7)

The person is exempt if—

(a)the person is an individual whose work includes assisting in the conduct of litigation,

(b)the person is assisting in the conduct of litigation—

(i)under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and

(ii)under the supervision of that individual, and

(c)the proceedings are being heard in chambers in the High Court or a County Court and are not reserved family proceedings.

So in the matter that came before him, if he was satisfied that the agent was assisting in the course of litigation he would be exempt IF acting under the supervision of a person who is authorised or exempt. However, the words in bold (my emphasis) show that family proceedings could be a separate category, if the Lord Chancellor prescribes.  I haven't found anything to suggest that the Lord Chancellor has prescribed any specific family proceedings to be separately defined.

Can an person who isn't exempt or authorised deal with Matrimonial Litigation?

If a person conducts litigation then they are undertaking a reserved activity. The definition of conducting litigation includes -

1. Issuing
2. Commencement
3. Prosecution
4. Defence

Of any proceedings in any court in England and Wales.

I know of a small number of solicitors who when dealing with a Litigant in Person have been referred to an unqualified/part qualified person to correspond with. If the solicitor believes that the person is assisting in the conduct of litigation without being supervised by a person who is either exempt or authorised then there could be trouble ahead.

 Criminal Offences

 Section 14 makes it an offence to carry out any reserved legal activity if a person is not entitled.  It is a defence if the person didn't know or couldn't be expected to know that an offence was being committed.

However, if a person is found guilty of an offence then the penalty is-

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and

(b)on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

 In addition to which -

A person who is guilty of an offence under subsection (1) by reason of an act done in the purported exercise of a right of audience, or a right to conduct litigation, in relation to any proceedings or contemplated proceedings is also guilty of contempt of the court concerned and may be punished accordingly.

 The future

In April 2014 it is possible that a Judge could have a full morning family list of 8 cases where each party is a Litigant in Person. Would the Judge find it easier to have all or some of those people supported by an unqualified McKenzie friend who has asked for permission in accordance with the relevant guidance? Better still, would a Judge prefer to have a part qualified McKenzie friend than no representative at all?

The main drawback is that a McKenzie friend doesn't usually have the right to address the court or call or cross examine a witness and so can't really do much more than provide support, take notes etc. 

Although Judges should be slow to grant a McKenzie friend permission to address the court, it might be more attractive to a Judge to do so than to deal with 8 cases without a single represented party. The practice guidance makes it clear that to grant a right of audience to a lay person should not be for mere convenience but only where there are good reasons to do so.

Although the scenario may seem dramatic, after April 2013 when Legal Aid is withdrawn for all but the most complex family cases, it might not be unusual for many people to attend court without formal representation. I know of a law graduate who recently told me that he had attended no less than 8 hearings as a Mckenzie friend and had addressed the court on every single occasion. When I pointed out that he didn't have the right to do so, he was surprised as not a single Judge had questioned him (if his version of events is to be believed).

I can see new system developing, whereby these part qualified lawyers earn a living by offering their services as professional McKenzie friends. A quick Internet search will show that there are already paralegal services companies and McKenzie friend websites that offer these services whilst maintaining within the regulatory framework.

I wonder if qualified lawyers will be squeezed out of the profession altogether.