McKenzie Friends and Paralegals – What Are They and How Do They Differ?

Created: Thursday, September 26, 2019, posted by Geetesh Bajaj at 10:00 am



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By Craig Johnson, NALP Licensed Paralegal & Professional McKenzie Friend

It’s a common misconception that, when attending court in the UK, one must hire a solicitor or instruct a direct access barrister to progress their case for the desired outcome. However, this is no longer true. Since 2013 with cuts to legal aid and the average person unable to afford to hire expensive legal professionals, a new type of “lawyer” has arisen; the McKenzie Friend and the Paralegal.

But what are they and what are the differences?

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The McKenzie Friend

The right to a McKenzie friend was established in the 1970 divorce case of McKenzie v McKenzie. Mr McKenzie instructed a Mr. Hanger to represent him, which the court would not allow as Mr. Hanger was only qualified in Australian Law. The court, however, did allow Mr. Hanger to sit as an observer taking notes and advising Mr McKenzie during adjournments. Mr. Hanger proposed he should be allowed to sit next Mr. McKenzie and take notes and advise quietly, which the local county court denied.

Mr. McKenzie lost his case and appealed to the Court of Appeal stating he was denied the right to reasonable legal assistance which lead to him losing his case. The Court of Appeal ruled a “McKenzie Friend” could be allowed to all Litigants in Person (LIPs) who are unable to afford legal assistance. Furthermore, a judge should only deny a McKenzie Friend whom they deem unsuitable. Due to this precedent the role has evolved and many LIPs hire a McKenzie Friend to attend court with them if they cannot afford a solicitor.

Today, there are various types of McKenzie Friends assisting litigants within their court proceedings. One type is a Professional McKenzie Friend. This is usually someone who charges for their services or someone who is legally qualified and does not know the litigant in any capacity other than as a client. Most Judiciaries only classify a Professional McKenzie Friend as someone with a recognized legal qualification.

Another type of McKenzie Friend is an agency worker, for instance a Mental Health Nurse, Social Worker or a person appointed by the Citizens Advice, who may not have any professional qualifications in law nor is charging the client.

Sometimes a McKenzie Friend is a family member assisting their child, sibling or parent etc. throughout the court case. Technically, a McKenzie Friend can be anyone that the judiciary finds appropriate – and that person doesn’t have to have legal expertise or experience. They are there to provide moral and emotional support, and a second pair of eyes and ears.

The Paralegal

Paralegals are rather different. They were first established as legal assistants and have now progressed into a profession in its own right. The term Paralegal was originally generic as the Paralegal Profession was unregulated until 1987 when the National Association of Licenced Paralegals (NALP) was formed and later (in 2003) the Institute of Paralegals (IOP). Both bodies are self-regulated membership organisations, with NALP being the only body to offer Ofqual qualifications for Paralegals.

Paralegals can do almost everything a solicitor can do – with the exception of what is known as ‘reserved’ activities. These remain the preserve of solicitors.

A lot of Paralegals now attend court on a regular basis to represent clients in small claim proceedings or smaller cases and act as a representative if they belong to a regulated firm which is a part of the Solicitors Regulation Authority (SRA). However, it can be challenging for an independent Paralegal Firm to obtain the same rights. Although most Paralegals who run their own practice have at least three years’ experience, have an Ofqual recognized qualification, and a Licence to Practise – meaning they have been vetted and proven competent – the judiciary will still treat them in accordance with the McKenzie Friend Practise Guidelines, limiting what an experienced Paralegal can do!

What You Need to Know if Hiring a McKenzie Friend or Paralegal

If you decide to hire a Paralegal – what do you need to know? Firstly, ensure they belong to an organisation, like NALP, and they have a Licence to Practise. Secondly, check their qualifications; a “Qualified Paralegal” is someone who has undertaken a certain level of professional Ofqual recognized training and understands their level of law in-depth. Thirdly, understand whether the Paralegal is attached to a Law firm or if they are an independent entity and can assist you through the court process.

A McKenzie Friend, even a Professional fee-charging one, can be someone who is not professionally qualified nor had any other experience besides litigating their own case in the past. Some McKenzie Friends have obtained relevant legal qualifications or they may be an ex-practising solicitor. You can find a list of qualifying McKenzie friends via The Society of Professional McKenzie Friends (SPMF) which vet and attain McKenzie Friends who are qualified to at least a A-Level/Level 3 in law. Other organisations, like the McKenzie Friend Organisation, have a variety of McKenzie Friends some qualified and some not; their aim is to allow the consumer the widest choice.

In summary, the one key difference between a McKenzie Friend and a Paralegal is that a McKenzie Friend (Professional or Not) can be anyone. Whereas a Paralegal is a legally qualified person who can perform most of the same tasks a solicitor can – with the exception of reserved activities. They may be able to represent you in court if the court allows, or if they are supervised by a solicitor.

Many independent Paralegals are asking the judiciary to consider them separate and different from the usual McKenzie Friend roles. It is hoped that in future there will be separately drawn up regulations (like Solicitors and Barristers have) which will help progress the professional further.


Craig Johnson
    
Craig Johnson A.NALP, from Johnson’s Paralegal Services, is a NALP Senior Licensed Paralegal and a Professional McKenzie Friend. Craig is a Member of the National Association of Licensed Paralegals (NALP); a Full Professional Member of The Society of Professional McKenzie Friends (SPMF) and a Fully Professional Member of The McKenzie Friend Organisation (MFO).

National Association of Licenced Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognized as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its training arm, NALP Training, trading as National Paralegal College, accredited recognized professional paralegal qualifications are offered for a career as a paralegal professional.

The views and opinions expressed in this blog are those of the authors and do not necessarily reflect the official policy or position of any other agency, organization, employer or company.


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