SRA Guidance: Offensive Communications

Due to a significant increase in the number of complaints the SRA has received concerning inappropriate communication via email and social media, a warning notice has been issued to those within the scope of the SRA. This notice provides warning and guidance on the types of behaviour that has been reported and in some cases resulted in disciplinary action.

From this guidance, litigants and McKenzie Friends should ensure they take the time to read and understand the expectation of professionalism from solicitors and bodies the SRA regulate. Below, we have highlighted the main points that litigants and McKenzie Friends should consider when SRA regulated firms or individuals are communicating with you.

A number of complaints have been made to the SRA concerning communications of an unprofessional nature; this includes behaviour inside and outside of practice in emails and on social media. It has been clearly stated that communication of, but not limited to, an abusive, offensive, pejorative or threatening nature, including comments to harass or victimise is wholly inappropriate. This behaviour does not comply with the SRA Principles to Act with integrity; behave in a way that maintains the trust the public places in solicitors and in the provision of legal services, and to carry out your role in the business in a way that encourages equality of opportunity and respect for diversity.

The guidance also provides the following in regards to “Communications with other law firms and litigants in person”:

It is not uncommon for emails between law firms in relation to a client’s matter to be robust, particularly in litigation. However, you should ensure such communications do not cross the line by using inflammatory language or being gratuitously offensive, either to the other side or about their client.

Your role is to act in the client’s best interests; antagonising the other side is unlikely to achieve this. You should remain objective and not allow the matter to become personal, regardless of the provocation or your client’s instructions. You are not your client’s ‘hired gun’ and you may be at risk under Principle 3 if you allow your independence to be compromised by being drawn into using offensive language or making offensive comments in order to meet your client’s expectations.

It is equally important to remain professional when dealing with an individual who is representing him or herself or has appointed a McKenzie Friend. In a recent decision, the SDT fined a solicitor for his heated and abusive exchange of emails with a litigant in person, calling this ‘completely unacceptable’. The SDT said it was the solicitor’s responsibility to maintain his professionalism regardless of what that person may have done.

You should also be aware that should the individual publishing offensive material be a solicitor, Principles 1, 2 and 6 of the SRA Code of Conduct continue to apply outside of practice including in other business capacities or in their personal lives. As this is the main area the SRA is receiving complaints of unprofessional communications, it should be noted that litigants or McKenzie Friends that are victim to such behaviour can still raise a complaint to the SRA for failing to comply with the abovementioned notice and the applicable Principles.

Furthermore:

It should also be considered that the McKenzie Friends Marketplace requires its own members to “remain professional, supportive, helpful and act with integrity towards clients and through your membership”.

 

Full SRA Warning Notice: http://www.sra.org.uk/solicitors/code-of-conduct/guidance/warning-notices/Offensive-communications–Warning-notice.page

MFM Code of Conduct: https://mckenziemarketplace.co.uk/cocpage

Vexatious Proceedings – S.42 Proceedings Order

The latest case of Attorney General v Vaidya [2017] EWHC 2152 has provided another example of how McKenzie Friends can be prevented from “instituting or making applications in cases in the civil courts and tribunals”. As in this case a litigant, not acting as a McKenzie Friend at the time, made nine applications or appeals before the courts which were without merit. In doing so, over an extensive period, the respondent, in this case, enabled the Attorney General to bring proceedings under s.42 of the Senior Courts Act 1981.

The addition, in these proceedings, in which makes McKenzie Friends relevant is the precedent in which it has established as a consensus amongst the judiciary to install an additional paragraph in such proceedings to restrict the ability to bring proceedings in any court or tribunal on another litigant’s behalf. This ensures that if a litigant or representative was to “habitually and persistently and without any reasonable ground” institute vexatious civil proceedings, applications or prosecutions in the High Court, Family Court or any inferior court they can be subject to a civil proceedings order, criminal proceedings order or all proceedings order.

This new case highlights an additional protection for consumers, should a legal representative or McKenzie Friend every bring or be a party to continuous groundless applications or appeals. Should a pattern of such conduct arise “habitually and persistently” the other parties to the case could raise the motion to the judge to alert the Attorney General or Solicitor General to seek a s.42 proceedings order.

Litigants and McKenzie Friends should be on notice, that both personal proceedings and professional participation in proceedings in which are without merit and in abundance can be taken into account if the Attorney General looks to bring a proceedings order against you.

S.42 Senior Courts Act 1981 – http://www.legislation.gov.uk/ukpga/1981/54/section/42

Attorney General v Vaidya [2017] EWHC 2152 – http://www.bailii.org/ew/cases/EWHC/Admin/2017/2152.html

Seeking Legal Support

When you find yourself in a situation where you need legal support, it is likely a stressful and complicated time. At such a time, it can be difficult in England and Wales to determine who fits best to your needs. This is because, opposed to other jurisdictions, England and Wales has a range of legal services providers all which come under the term ‘lawyer’.

In any event, solicitors and barristers are always well placed to provides a full range of legal services including advice and representation. This is because solicitors and barristers are authorised providers, entitling them under the Legal Services Act 2007 to provide reserved legal activities. To many, however, whether it be due to legal aid cuts or a lack of funds, being able to afford the costs of a solicitor or barrister may be out-of-reach. This is why many turn to McKenzie Friends. Fee-charging McKenzie Friends are likely to have a qualification or experience in law and can provide basic assistance to litigants-in-person at an affordable rate.

A concern raised by some authorised providers is that of consumer protection when seeking the assistance of a McKenzie Friend, there is no prerequisite requirement of insurance, qualification or experience. In response to this concern, the McKenzie Friends Marketplace (MFM) comprised, in partnership, its own exclusive McKenzie Friend insurance policy. MFM additionally created and enforces its Code of Conduct to set a professional standard amongst its members, which protects its users. This means that every member of MFM is insured with professional indemnity insurance, provides business terms and a complaints procedure.

It is also understood that finding clear, jargon-free information on McKenzie Friends is difficult, with many directory sites providing little confidence to its users. MFM provides a wealth of information to its users, including a free, downloadable and comprehensive guidebook. Taking into consideration, your needs, budget and circumstances a McKenzie Friend may be what you need. Before making a decision or purchase, ensure you discuss with any legal professional what procedures are in place to protect your position, ensure they have the necessary knowledge and skills and, finally, make sure you’re comfortable with that professional.

McKenzie Friends can be found upon creating a free Customer Account.

Solicitors can be found using the Law Society website here:  http://solicitors.lawsociety.org.uk

Barrister or mediators can be found using Billy Bot here: http://www.billybot.co.uk

Legal Services Providers

The legal sector has many providers of legal services; these providers are commonly broken down into two categories, those being authorised providers and unauthorised providers. Authorised providers are granted the right to provide reserved legal activities (in most circumstances) and are regulated for either some or all of the legal services they provide.

Authorised providers of legal services include solicitors, barristers, legal executives, licensed conveyancers, patent attorneys, trademark attorneys, cost lawyers, notaries and due to recent changes, accountants can now be authorised providers. As authorised providers are regulated, they are required to meet minimum entry requirements in terms of experience and legal qualifications, and this helps drive the standard and quality of the services provided by these providers.

Unauthorised providers are those that do not provide reserved legal activities unless granted through various provisions of legislation; they are not usually regulated although many voluntarily regulate through membership organisations or bodies. Unauthorised providers of legal services include will writers, McKenzie Friends, Citizens Advice and similar charities, financial advisers, trade unions, human resource and insurance companies and a variety of other paid-for service providers.

Although unauthorised providers can trade without any affiliations or regulation, many choose to become members of voluntary membership bodies. These bodies set minimum entry requirements for members, as well as setting terms concerning the legal services their members provide; this may be set conditions around the services they provide and guidance as to how they should be provided.

Supporting Settlement

McKenzie Friends are a common feature when it comes to family law disputes and court hearings. It is for this reason McKenzie Friends, particularly those working in the family law arena, should emphasise and install alternative dispute resolution methods within the work they do. Negotiation and mediation can see many disputes and hearings put in the past, saving court time and client’s money.

So, how do you ensure you are supporting settlement in the work you do? When taking on a new client, it should be routine practice to signpost and discuss other sources of dispute resolution outside court. This should feature both the positive and negative elements of going to court and ADR methods. Generally speaking, clients are seeking cheaper methods to resolving a dispute, and although not every client wants to compromise, with amicable and progressive conversation parties can better understand the benefits to a mutual agreement, rather than taking orders from a third-party. Mediation can be a great way to do this as mediators can set the tone, limit tensions and push forward the conversation, resulting in not only a cheaper resolution but a mutual one.

If a compromise or understanding can be successfully extracted from both parties, the skill and ability to transform this into an agreement is crucial. For those with experience, it may be a regular service provided, if you’re without knowledge or experience it may always be worth having a solicitor or professional ready to assist you.

Conduct of Litigation – A reserved legal activity

The role of a McKenzie Friend has been expanding in terms of activities and services. Over decades of development of McKenzie Friends identifying where certain activities delve into conduct of litigation (a reserved legal activity) is a difficult one. The Legal Services Act 2007 provides some guidance on the definition:

1    The “conduct of litigation” means –

(a)    the issuing of proceedings before any court in England and Wales,

(b)    the commencement, prosecution and defence of such proceedings, and

(c)    the performance of any ancillary function in relation to such proceedings (such as entering appearances to actions).

However, these provisions do not assist its reader very well in providing a clear and unambiguous definition. To further assist McKenzie Friends in identifying whether certain activities are reserved, the Bar Council and Bar Standards Board provides guidance documents can be more helpful (although they are not all decisions of the Courts).

It is clear, from the Bar Council, that issuing or filing formal court documents would amount to conduct of litigation, as is shown in the case of Media Protection Services Ltd v Crawford and another [2012]. Examples of formal court documents may include “issuing a claim form in a civil case, filing a divorce petition or laying an information in a criminal case.” However, it is considered by the Bar Council from the Bar Standards Board (BSB) guidance that drafting and serving documents such as skeleton arguments, case summaries, position statements, chronologies and lists of issue on the other party would not come within the remit of conduct of litigation. This includes filing bundles for hearings with the court/tribunal and opponent.

Other activities that are considered not to come under conduct of litigation include correspondence (note this does not include formal documents) and sending of documents otherwise by way of service, during the course of litigation. Furthermore, drafting of pre-action letters and collecting evidence is also not considered to be reserved under the Bar Councils understanding.

For those unauthorised persons providing legal services, we recommend reviewing the guidance documents provided by the two abovementioned bodies to ensure you are only providing unreserved legal services. The links to the two relevant documents are provided below.

The below table provides those reserved and unreserved activities mentioned above.

Reserved Activity (conduct of litigation) Unreserved Activity
·      Issuing or filing formal court documents (claims forms, divorce petition, laying an information, application notice, notice of appeal).

·      Delivery of the above documents and alike could also be regarded as reserved.

·      Instructing an expert.

·      Filing/drafting skeleton arguments, chronologies, case summaries, position statements, list of issues, bundles (including trial bundles).

·      Serving the other party of the same above documents.

·      Correspondence (must not be under cover of a formal document) and sending of documents otherwise by way of service during the course of litigation.

·      Pre-Action / Letters before action.

·      Drafting of a Part 36 offer

·      Collection of evidence / taking statements from a potential witness

 

 

 

Bar Council – Role of barristers in non-solicitor cases:

http://www.barcouncil.org.uk/media/406060/role_of_barristers_in_non-solicitor_cases.pdf

Bar Standards Board – Handbook 2017:

https://www.barstandardsboard.org.uk/media/1826458/bsb_handbook_31_march_2017.pdf

 

Data Protection – What is best practice?

Data protection is of key importance when providing legal services, due to its overall sensitive nature and contents. This is why it is of high importance to ensure awareness, practices and procedures are in place when trading through our platform. Particular attention should be drawn to obtaining, sharing, storing and destroying information from a client. Providers of legal services should take advantage of the information provided by the Information Commissioner’s Office (ICO) and should complete the registration self-assessment questionnaire to identify whether they need to register with the ICO.

In order to provide legal services, it may be necessary to obtain personal information and documentation, here McKenzie Friends (acting as small businesses) under the Data Protection Act must only: collect the information needed for the specific purpose; keep such information secure; keep it up to date; only hold it for as long as necessary; and allow the subject of the information to see it on request. The way information is held by McKenzie Friends is of importance when considering the above statutory requirements, such as whether information or documentation is held electronically or in hard-copy. Both result in different methods of storage to ensure such information is stored/held securely.

When downloading information or files that have been shared, it is necessary to ensure such information is stored securely on the device. This may require such a device to have, for example, virus protection software, password protection, additional file or folder passwords and the use of encryption.

When in possession of paper copies of information from your client, it is necessary to ensure such documents are stored securely in your place of work (or other suitable location). This may require a filing system so as not to confuse or merger clients’ paperwork, use of a filling cabinet with a locking mechanism, and a routine procedure to store all paperwork in such a location at the end of each working day.

McKenzie Friends Marketplace already has an established structure, code and automated functions which assist McKenzie Friends and protect customers using our site. The platforms Code of Conduct provides mandatory requirements of McKenzie Friends surrounding methods of communication, in order to limit the passing of personal information and use of personal accounts. We provide a secure messaging system including a file sharing feature to our users, which removes the need to share such information on personal email or cloud accounts.

Official guidance on best practice can be found on the ICO website here: https://ico.org.uk/for-organisations/

Legal Advice: Can I provide it?

Legal advice can be provided by anyone in the jurisdiction of England and Wales as it does not fall under what is stated as a reserved legal activity, and therefore no prerequisite education or training is required in order to provide it. Statements that legal advice cannot be provided ‘by law’ by anyone but a solicitor, barrister or paralegal are factually incorrect after the passing of the Legal Services Act 2007.

Providers

There are, what should be considered, different levels of knowledge surrounding the law and its applicability. The issue of debate is which level is sufficient to enable an individual to provide good legal advice. A conjoined issue with this is, with current legislation, no legal definition is provided for ‘legal advice’, and so the scope of what qualifies as legal advice can be difficult to identify. There are some organisations that operate distinctly excluding legal advice from their services, most likely due to quality and liability reasons.

Individuals such as law graduates and postgraduates will have a basic understanding of court etiquette, the legal system, how common law and legislation is interpreted and applied. There are others who may have completed courses, training or a period of experience in which enables them to understand the law and provide advice.

Barristers and solicitors are regulated individuals that are granted rights to conduct or perform the reserved legal activities as provided in the provisions of the Legal Services Act 2007. It should also be noted that the term ‘barrister’ and ‘solicitor’ are protected terms; whereas the term ‘lawyer’ is not. In addition to being able to conduct reserved legal activities, barristers and solicitors are considered to have a high degree of understanding and experience surrounding specific areas of law, its interpretation and application, as well as a detailed understanding of the procedure, evidence and practicalities of proceedings. This knowledge and experience comes from the set requirements to become qualified as a barrister or solicitor, as this requires a qualifying law degree (or GDL), completion of the Legal Practice Course or Bar Professional Training Course; and completion of either a training contract or pupillage.

Considerations

What should be considered is the needs of a client when providing legal advice, and the level of knowledge and understanding one has. If a client would simply like to understand the common procedure of proceedings, it may not be necessary to instruct a barrister or solicitor, as a consultant or experienced/trained/educated individual may be able to provide the same information at a more affordable rate. However, if a client needs complex legal advice concerning a specific area of law in relation to their case and the individual is unfamiliar with such an area, it would be entirely sensible to consult a solicitor or barrister for such advice.

The question as to whether anyone can provide legal advice, the answer is any individual that feels so inclined can. The secondary and more important question to ask is when should non-regulated lawyers provide legal advice? when considering answering this question, it should be considered what a client needs/requires and what ones’ knowledge, understanding or experience is to fulfil those needs/requirements.

Accessing Legal Support

Access to justice is regarded as a crucial and fundamental element to any sophisticated democratic society, and a prerequisite to the doctrine of the rule of law. However, in the 21st century what is the reality of an ordinary person living in England and Wales being able to access legal support and adequately enforce or defend their fundamental rights?

The topic of debate concerning access to justice is access to legal support itself, basic knowledge of formal documents and an understanding of legal terminology is highly valued by litigants-in-person (LIP). Attending and navigating court can be a daunting task for a LIP, but with legal support, an LIP can find the procedure less stressful and proceedings more understandable.

Access to an individual with legal experience, qualifications or a combination can make all the difference. However, access to and information surrounding those that provide such support is not easily discovered, nor are expensive lawyer’s necessarily approachable or obtainable.

Any competent lawyer in their respective field will know the forms required; what to put on those forms; where to file them; and how much it will cost. However, any ordinary person would not know any of this, nor would they necessarily understand the forms if they were provided. This is how the English legal system is almost entirely reliant on solicitors and barristers to act on behalf of a litigant so that they can navigate the legal system. Currently, there is no simple system available to litigants to find information surrounding applications; there is guidance supplied with most court forms. However, they are not clear nor easily interpreted by the ordinary member of the public. Hence the need for lawyers.

This is the key issue with access to legal support, there is no lack of competent lawyers, but those able to afford the cost of these lawyers and the valuable work they do is something very different. The ordinary person just cannot afford to pay thousands of pounds for a barrister to represent them at a hearing, nor be able to pay a solicitor to conduct their case. Where there is a lack of access to affordable legal support, there is a lack of meaningful access to justice.

It is from this that a mass of pro-bono units and charities have become jam-packed with enquiries and pleas for help. These individuals are unable to understand the legal processes and procedure; meaning litigants-in-person have nowhere else to go but these charitable organisations. The work these organisations and charities do is monumental to the flow and continuation of proceedings on a national scale, however, the issue of balance between parties is clearly still apparent with 80% of all private family law cases having at least one party unrepresented.

There has also been a growing trend toward seeking assistance from those with some legal experience and qualifications, with 80% of people with a problem seek advice from someone other than a regulated lawyer.

There is clearly a need for some legal assistance and guidance in preparation for, and during proceedings as this issue is only going to get bigger with increasing court fees and court closures, inflation, Brexit and legal aid cuts. It is already understood that charities and pro bono units will be unable to continuously supply such a high-demand, and currently there is no substantial affordable middle ground.

The McKenzie Friends Marketplace is an online platform provided to the public allowing litigants to research and obtain a quasi-regulated and insured McKenzie Friend. The site launched in March 2017 enables paralegals, consultants and law graduates and postgraduates to come together and create an account. Providing legal services to litigants at affordable rates.

As there is such a growing demand for representation and assistance paralegals, law graduates and postgraduates are in the perfect position to tip the scales. Although this is not a replacement of regulated lawyers, it is an affordable alternative for those who cannot afford such high fees.

The Role of a McKenzie Friend

McKenzie Friends became established from the principle case of McKenzie v McKenzie [1971] where the Court of Appeal clarified the right to reasonable assistance from a friend (now recognised as a McKenzie Friend). When a litigant-in-person is unable or does not wish to instruct a solicitor or barrister another option for affordable legal support is the use of a fee-charging McKenzie Friend.

Fee-charging McKenzie Friends developed from the ‘traditional McKenzie Friend’, who was somebody the litigant-in-person knew who was happy to help at no cost. However, soon after traditional McKenzie Friends were established individuals with knowledge, experience or qualifications in law begun to provide unreserved legal assistance to litigants-in-person. Recently, we have seen a sharp rise in litigants-in-person utilising non-regulated lawyers to assist them during proceedings due to high legal and court fees and a decline in legal aid funding.

Since the term, McKenzie Friend became recognised within the legal sector, and with the Legal Services Act 2007 providing greater clarity on reserved legal activity and unreserved legal activity, the role and scope of non-regulated lawyers, including McKenzie Friends, of work that can be provided has widened. The limitations of a McKenzie Friend are: exercising a right of audience before the courts (although there is an exception where a judge grants express permission), conducting litigation or reserved instrument activities. Probate, notarial activities and the administration of oaths are also reserved activities but are not commonly associated with the role of a McKenzie Friend.

Discounting the activities as laid out above, a McKenzie Friends’ common role when assisting a litigant-in-person is: accompanying that litigant to court hearings and taking notes, organising the clients’ paperwork, drafting documentation and filling out forms, providing procedural and moral support, legal advice and, where permission is granted, speak on behalf of a litigant. It is these legal services which our McKenzie Friends offer litigants, installing greater access to legal support as and when necessary.