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Bad Mckenzie Friend!(152 Posts)
I'm new here and was after some advice.
My ex has custody of our daughter (aged 12) who would now like to live with me. I asked a Mckenzie friend for help, he said it would be no problem, i just needed to pay him for filing the papers with the courts and for his time to fill them in. i paid him the money and waited for a week. Nothing. I called him and he said a hearing was taking place the following week that i didn't need to attend and that my ex had been served with the papers. I know my ex and if he had the papers, there is no way he wouldn't say anything to me, i heard nothing from him. The MF said he was likely staying quiet because he was going to contest it but he'd send me a report of the 'serving of papers' again, i had nothing. after the first hearing had happened, i asked if there was an outcome, the MF said yes, there is a hearing i need to attend in 3 weeks, i said ok, can i have the papers to confirm when and where it is for my own peace of mind. He agreed to send them on 3 different occasions, nothing ever arrived. I then called the local family court to see what was happening, they hadn't heard of me or the case. I told MF this and he agreed to meet up with me the following day, he didn't show up at 2 different arranged times. i asked for my money back which he agreed to, but again nothing happened! i threatened to call the police, he said he was transferring the money back to me and sending my papers, to date i've had nothing, i don't know what to do and need some help from someone, i doubt very much the police can do anything, i can provide details of this person to stop anyone else being duped by him but right now, my concern is my daughter and getting my money back so i can proceed with the court case myself. Any advice is gratefully appreciated.
JD, I don't understand where you get the idea that an incompetent Mackenzie friend will cost you less than an incompetent lawyer. Yes, he may charge lower fees, but you won't have the mechanism that you have with lawyers of getting his fees checked by the professional body or the courts, nor do you have the option of getting him disciplined by a professional body. More seriously, if he loses you your case, the actual cost may, in the family context, be the loss of contact with your child or, in the worst case scenario, loss of parental rights. If you want to repair that, you are going to have to appeal, and your chances of doing so successfully with an MF are frankly limited. Is that cost really less than the cost of having a lawyer?
I've checked on the BSB as well as the SRA and the first 8 McKenzie Friends who have excellent qualifications and may have been barristers or solicitors are NOT on the lists.
None of them suspended, disbarred or any other sentence.
More nonsense it seems from certain quarters. Talk about a lack of credibility.
Nenny - It simply does not happen generally. I know of plenty of people who have made complaints to the professional bodies about a solicitor or barrister's actions when instructed by them.
These professional bodies look after their own, except when it is criminal or another lawyer complaining about another lawyer.
Bottom line is that the OFT and the Police are the best people to go to for if you are being swindled, forget the professional lawyer regulators.
Plus in my own case and with many others I know, often lawyers are the worst people you want involved in your case. They drag matters on interminably and stoke the fires, for personal financial gain. I had MF's in my case and they turned it around after the debacle of lawyers input and taking huge monies off of me.
If you check out the Case Law in child matters, there are plenty of cases where an appeal has been successful with a McKenzie Friend, bearing in mind they are few and far between compared to lawyers. MF's are punching above their weight regarding successful appeals it seems.
Plus the Law Watchdog - 'Legal Services Consumer Panel' say in a full report that McKenzie Friends should be valued more by the family law system.
It is primarily junior lawyers who do not understand the value of good McKenzie Friends, according to them.
Fwiw, I am a barrister and a mediator in family law. I have met some dodgy barristers and some dodgy MF - in my view the dodginess of the MK is far more dangerous because they often seem emotionally over invested in the case, do not understand the demands of an adversarial trial and can give some really awful 'advice'.
In my view, what makes a mess of family cases however is often very little to do with who ever conducts the litigation but the fact that the lay clients are often in the grip of enormous psychological pain and the court is the very last arena they should be in.
If people want help/advice with family cases but are worried about costs, a good compromise might be to instruct a public access barrister who can advise or appear at court as a one off. The bar council keeps a record of all barristers who have trained this way.
Regarding MFs qualifying as legal executives, the devil is in the detail. Legal execs have to pass the level 3 and level 6 exams, and undertake three years of qualifying employment under an authorised person in private practice (eg a solicitor) or by an organisation where the employment is subject to the supervision by an authorised person employed in duties of a legal nature by that organisation (ie in a company's legal department or a local authority's legal department and supervised by a solicitor). So an MF would have to take all the exams (which would take 2 years studying full time, but can be taken over a longer period if studying part time) and get a job carrying out work of a legal nature which is supervised by an authorised person.
The practical issues surrounding the cost of the exams and difficulty in getting a job in the legal sector nowadays aside, I don't think there is anything to prevent a MF from qualifying as a legal executive if they so wished. CILEx and IPS are pushing for legal execs to be able to set up their own law firms in reserved areas of law. They'd be regulated and have to answer to IPS, however. I doubt IPS would see a distinction between a legal executive guiding a client through their own case and advising and representing a client if anything went wrong.
One interesting point from the Legal Consumer Services Panel report is how it paves the way for a two-tier legal system. I wonder if in the future rather more enterprising (or less scrupulous) firms will give potential clients the choice of instructing, being advised and represented in court by a solicitor/solicitor advocate/barrister (let's face it, the government wants to merge these two arms of the legal profession whether it's good for the interests of justice and clients or not), or appointing a cheaper paralegal to act as a MF and guide a LiP through the case... I bet the SRA would have a hard time swallowing this, in any case.
And by paves the way I mean actively encourages.
Reality is that good McKenzie Friends assist people to access justice, which they would never have been able to - Law Watchdog (Legal Services Consumer Panel).
The Conman who this thread is about, was NOT or ever was a McKenzie Friend, he NEVER went to Court with people and did NOT do anything a McKenzie Friend would be expected to do.
In fact he was acting as a Solicitor, by offering reserved activities (saying he was dealing with the Courts directly and representing clients in their absence), but calling himself a MF on his websites.
The OFT and Police are taking the necessary action through the Criminal Courts.
It's a shame the SRA or BSB did not take any action whatsoever against someone performing/advertising themselves doing reserved activities under the Legal Services Act.
At least then they could have demonstrated they are performing their regulation task for once, timely and efficiently.
P.S. It's also a shame that some of the so-called experts on here jumped on the bandwagon immediately, saying that this Conman was a McKenzie Friend, when he clearly was NOT according to the original post.
The original poster was hit in a scam and she has my deepest sympathy but it has nothing at all to do with McKenzie Friends, as the Conman could have done exactly the same calling himself a Solicitor or Barrister.
The Conman was offering and performing reserved activities which a McKenzie Friend or Barrister cannot do, only Solicitors. But again where was the SRA or the BSB?
JD2510, I'm not sure you fully understand the remit of the SRA or the BSB. The SRA regulates individuals who are:
a registered European lawyer;
a registered foreign lawyer;
an authorised body;
a recognised sole practitioner;
a lawyer or non-lawyer who is a manager or employee of an authorised body; or
an owner of an authorised body (this is taken from the SRA's website). I'm sure one of the barristers on this board will step in to explain the BSB's remit .
So, the SRA cannot regulate an individual like the one referred to in this thread if he does not fall into one or more of the above categories. (It appears that he does not, but I have not seen evidence either way). If it did it would be stepping outside the SRA's remit. The SRA's remit for regulation is not 'everyone doing something vaguely related to the law'. If it were, it WOULD be able to regulate this individual (and all MFs, but that's beside the point). This is not, of itself, a failing of the SRA. It's a strawman argument to complain that the SRA is not doing something that is outside of its remit.
I'm not sure what your point about whether or not the individual about which the OP's post kicked off this particular bunfight is. The OP clearly believed he was a MFm whether or not he claimed to be one to the OP. MF is not a protected term, so arguing that this individual is not a MF is pointless, because anyone doing anything can call themselves a MF, regardless of whether they are doing something that MFs commonly do or not. This issue has arisen because MFs are not regulated. Not by the SRA, not be the BSB, and not by another MF-specific regulatory body.
How would regulation have prevented the situation in the OP? Surely even with regulation, Joe Bloggs could set up a website calling himself a "McKenzie Friend" and taken people's money so the consequences would have been the same? Would this MF regulatory authority cover people posing as MFs?
If someone set themselves up as a "solicitor" on their own (dodgy) website but wasn't a solicitor, would the SRA get involved in that? Or would it be referred to the police/Trading Standards which is what has happened in this case anyway because this man isn't a MF, that's just what he's decided to call himself.
But the SRA or BSB could of and still could if they want to - Ensure this Conman is 'prosecuted' under the Legal Services Act - But they do nothing it seems.
Not interested in 'regulation' it is of zero practical use, 'prosecution' is what is needed, led/started by the SRA and BSB.
If someone puts up a website and says they are builders, but only takes your money and never builds anything for numerous people - S/he is not a builder but a Conman/Fraudster.
He clearly was not a Mckenzie Friend because he was advertising and performing tasks McKenzie Friends cannot do. He was a Conman and a Fraudster.
He was doing Solicitor tasks, illegally. But no Solicitor or Barrister seems to want to report him and follow up with the SRA in ensuring the Police are going to prosecute him under the Legal Services Act as well as by the OFT.
It is a bit sad that the lawyers on here are so keen to have a go at MF's, they jump on the bandwagon with spurious claims. Shows how desperate they are, perhaps.
Obviously he wouldn't be able to register as MF of that became a protected term, but what would stop him setting up his own website and calling himself that anyway?
Nomoretether, you make a good point and I hadn't thought of it like that. It's likely that this would still be a case of Trading Standards, sadly.
JD2510 `But the SRA or BSB could of and still could if they want to - Ensure this Conman is 'prosecuted' under the Legal Services Act - But they do nothing it seems.'
While ostensibly regulation of legal professionals by membership is a good thing it's important to realise that's it's a figleaf - by and large not worth the ink used to print the reassuring logo at the top of the letterhead. Complain to the SRA and you'll quickly realise it is pointless - you typically won't be informed of progress, the decision or the reasoning behind it.
Membership of Resolution is also problematic: In it's existence over the last 30 years zero members have been punished for ignoring the main tenet of membership: A `non-confrontational approach to family law matters'.
All of the solicitors I deal with in my capacity as a McKenzie Friend are a member of Resolution and the SRA - I would estimate that at least 50% of them break the conditions of membership of both. I have had first hand experience of this.
Complaining to the court is also meant to be a way of dealing with this too incidentally - when inconvertible proof of bullying, lying, deliberately misleading litigants they have a duty of care, attempting to exclude evidence being just a few examples - the worst I have seen a legal professional suffering is a mild verbal rebuke.
Don't get me wrong: I see bad McKenzie Friends - I've picked up the pieces from litigants in person who have suffered under them. But if the `regulation' that some are demanding of them is as rigorous as that of legal professionals it is a complete waste of time.
My advice? Shop around and ask for references for ANYONE you are entrusting your children to. Solicitors, barristers, McKenzie Friends, whatever. I provide references on demand for my clients, provide a contract which protects my clients and me and I work to a code of contact for the organisation I work with.
It's not rocket science.
It's very interesting Spero. I was contacted by the Legal Services Consumer Panel for the study that it mentions and I know several others who were too.
I have had a great deal of conversation with solicitors and barristers whilst at court as well as court officials and there is generally a positive reaction. Most of the solicitors and barristers I have worked with have been professional and courteous and happy to work with me to come to orders by consent and for me to prepare draft orders to be put before the court.
During my conversations bad McKenzie Friends have come up - like the ones described in that link. I've picked up the pieces from clients who have dealt with them too. I provide a CV and a McKenzie letter that confirms I understand what I can and can't do and that is made clear to my clients before they become my clients.
I fully understand that a McKenzie Friend is not an equivalent to a solicitor or barrister although they can perform many of the similar functions. I think McKenzie Friends do have a role to play and do my best to help.
I don't think it's correct to say that the Law Society or BSB could have ensured that this MF was prosecuted. They have power to deal with people who pretend to be solicitors or barristers, but none in relation to MF. This is where an MF regulatory body would be helpful, because it could act in the same way. Just as the Law Society can take action against someone who pretends to be a solicitor, so an MF regulator could take action against someone pretending to be an MF. Without a regulator, there's nothing to stop this sort of person setting up.
lostdad - I think it is essential to improve relationships between MF and lawyers because I am already seeing the knock on effect of the legal aid cuts and the enormous difficulties of trying to work with litigants in person who, unsurprisingly are initially very suspicious of me as an agent for the other side.
I was told yesterday to stop writing in my my notebook by a LIP because I was trying to 'slaughter' her in court. I had to point out that I was trying to do everyone a favour by making sure I had an accurate note of what we were saying. It would have been so much easier to have been having this discussion with an MF who - hopefully- would have understood why I needed to write things down and there was nothing suspicious about it.
I am very angry that this Government has simply cut off funding avenues for people to get legal help with apparently no thought whatsoever about what is available to fill the gaps. There is a real risk the unscrupulous or the well meaning but misguided will rush to fill those gaps.
I wrote an article yesterday about an adoption case where it took arguments from two QCs in front of the Court of Appeal before the correct procedural route for an application was identified. If we are going to reduce people's access to legal help, we have to ensure laws are understandable...
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Wow, lostdad saying 50% of solicitors and barrister break their own rules! That's quite a claim. Why risk a decades long career and years of hard study to pass exams to get struck off? It just does not really make sense that half of all lawyers would risk that. I don't think I've ever broken a professional rule.
If MFs were regulated then there would be a formal approved list. And a fraudster, not appearing on the list, could be rapidly identified by a potential client. If someone tells me they are a doctor, I can check the GMC website. If someone tells me they are a MF I have to take their word for it.
This looks like a straightforward theft/fraud which the police should be interested in. If the person had drafted and lodged court documents it is very likely to be an offence under the Legal Services Act (s14, as they would be providing litigation services which is a reserved service and so cannot be provided by a McKenzie Friend or an impersonator of McK friends.
I would also advise writing to the SRA, LeO (the Legal Services Ombudsman) and the Legal Services Consumer Panel with the website address if the site is still up. They may or may not be able to help, but they should be made aware of this as an example of a problem.
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