Solicitors acting as McKenzie Friends and unbundling legal services – a cautionary tale

15 February 2017

On 9th February the Divisional Court handed down judgment in Ballard v SRA [2017] EWHC 164 (Admin) on an appeal from a decision of the Solicitors Disciplinary Tribunal.  The appeal represent one of the so far few cases that deals with those solicitors providing unbundled legal services or acting as McKenzie Friends.

Unbundled legal services are described in the Law Society’s excellent Practice Note (https://www.lawsociety.org.uk/support-services/advice/practice-notes/unbundling-civil-legal-services/) in the following terms:

In the context of legal services, the term 'unbundling' is used to describe provision of discrete acts of legal assistance under a limited retainer, rather than a traditional full retainer where a solicitor typically deals with all matters anticipated from initial instructions until the case is concluded. It is sometimes referred to as 'a la carte' legal services

The rationale for the growth of unbundling legal services is also explained in the Law Society’s Practice Note:

Clients of modest means, including a number of those who would previously have been eligible for legal aid prior to the April 2013 civil scope cuts, are unlikely to be able to afford to instruct a solicitor privately on the basis of a traditional full service retainer. They may, however, wish to instruct a solicitor under a limited retainer for a particular aspect or aspects of their case. Increasingly firms are introducing some level of 'unbundled' services as a more affordable alternative to the traditional retainer.”

Acting as a professional McKenzie Friend by advising someone in court is an aspect of unbundled legal services.

Recent adverse press reports have focussed on unregulated persons who provided such services (https://www.lawgazette.co.uk/law/devastated-and-destroyed-mckenzie-friend-victims-speak-out-on-tv/5059819.article).  However another aspect is the provision by solicitors of such services.  As the Law Society’s Practice Note makes clear, careful thought needs to be given by solicitors as to how they go about providing services and in particular making clear to the client and possibly the court the limited nature of the retainer and the capacity in which they are acting.  Ballard v SRA provides a real life example of some of the issues that arise.

Mr Ballard is a solicitor.  He was subject to conditions imposed by the SRA on his practising certificate that he could only work in employment approved by them and he had approval to work for a particular firm.  Outside his arrangement with that firm, he agreed to act for a client in relation to a criminal matter and to charge him £750 for his assistance.  This included appearing at a hearing in the magistrate’s court although, as it turned out, the hearing was adjourned on the day.  Mr Ballard and the client subsequently fell out and the client complained both to the SRA and the Legal Ombudsman.  The latter made an award in favour of the client which Mr Ballard refused to pay on the basis that the Ombudsman had no jurisdiction over him as he was not acting as a solicitor.   The SRA brought disciplinary proceedings based broadly along the lines that Mr Ballard was not permitted under the SRA’s Regulatory framework to act as he did.  It was also alleged that the failure to pay the Ombudsman’s award was misconduct.

A distinction needs to be drawn between acting on a limited retainer as part of unbundling arrangement and attempting to opt out of SRA regulation altogether.  The former is permissible the latter is extremely difficult.  As the Law Society observe in their Practice Note:

Your client care obligations as outlined in the SRA Handbook apply as much to unbundled services as they do to a full retainer. It could even b said that in some ways there are greater responsibilities to clients of unbundled services to clearly set out what are your responsibilities and those of your client.”

The thrust of Mr Ballard’s case was that he did not act as a solicitor when providing the services to the client.  As the Law Society’s Practice Note makes clear that is difficult ground and Mr Ballard was not helped by the fact that the client knew he was a solicitor and there was no retainer letter making the clear the capacity in which he was acting.  To this extent the case does not clarify the position of a solicitor who accepts they are bound by the SRA Code but seeks to limit their retainer. 

However, the case does raise some points of wider significance.  One particular area of difficulty is where a solicitor is providing one of the functions regulated under the Legal Services Act 2007.  In this case Mr Ballard appeared in a court on behalf of his client, albeit briefly.   Whilst an unqualified McKenzie Friend could address the court by an exemption granted by the Court under Schedule 3 of the Legal Services Act that exemption is not available to “an authorised person in relation to that activity.”  The Solicitors Disciplinary Tribunal concluded that this meant that Mr Ballard could not be an exempt person under Schedule 3 so there was no statutory route for Mr Ballard to be heard.  Whilst the Divisional Court did not express a final view on the matter they indicated that they: “incline to the view of the tribunal as to the effect of Schedule 3 to the Legal Services Act 2007 read together with the Solicitors Act 1974.”  This difficulty in solicitors acting as McKenzie Friends is presumably why the Law Society’s Practice Note refers to solicitors providing paralegals for that purpose.  The Practice Note states:

As an alternative to traditional advocacy you may wish to consider providing your client with a professional McKenzie Friend service in appropriate cases.

The role of a McKenzie Friend is to provide advice and support to a litigant in person during the course of a hearing, but a McKenzie Friend has no right to address the court, save for exceptional circumstances where the court sees fit to grant leave.

Further information about the role of McKenzie Friends in the civil courts can be found in the Practice Guidance dated July 2010 by the master of the rolls and the president of the Family Division. A suitably trained paralegal member of your firm could enable you to provide a McKenzie Friend service for a modest fee compared to the cost of providing advocacy at the hearing. As with other services described in this practice note, you must clearly define the limits of the service, and address considerations such as your client's ability to benefit from the service.”

The court in Ballard made clear that the limitations under Schedule 3 of the Legal Services Act did not interfere with the court’s jurisdiction to regulate its own affairs so it could agree to the appearance of a solicitor even if they were not acting as such.   However, any solicitor seeking to act as a McKenzie Friend will need to consider the position very carefully and ensure that the court is fully aware of the basis of any application to appear.

The second issue is the jurisdiction of the Legal Ombudsman over solicitors who provide legal services but are not acting as solicitors.  On this aspect the court was clear that the jurisdiction rested on Mr Ballard’s status as an authorised person and did not depend on the way in which he provided the services.  It would follow that when a solicitor provides unbundled legal services it is not possible to avoid the jurisdiction of the Ombudsman.

I would add for completeness that I presented the case on behalf of the SRA before the SDT when at my previous firm but was not involved in the appeal.

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