The Guide could perhaps be called 'The Lay Lawyers Handbook', and be divided into the following sections:
Chapter 1 - From McKenzie Friend to Lay Lawyer: A Brief History
This chapter could briefly outline the history of the McKenzie Friend, the developments in the sector both legal and cultural, and the current status of these advisers at the time of publication.
Chapter 2 - What is a Lay Lawyer and What Can They Do?
This chapter would offer a working or official definition for ‘lay lawyer’, and the different services they can offer, which Rules apply to them and where those rules can be found, both online and within the Handbook. This chapter could also outline what lay lawyers can expect from judges, solicitors and barristers who may be representing other parties in the case, for example any rights to reasonable assistance from the court and lawyers involved in the case.
Chapter 3 - From Client To Case Hearing: Notifications Timetable
This chapter would offer a working timetable for lay advisers. From alerting the court to their involvement with a case, to seeking rights of audience, this section would give lay advisers clear and easy to follow guidance on when they need to notify the court of specific events, what forms they might need to fill out and what kind of information they will need to provide.
Chapter 4 - Lay Lawyers’ Code Of Conduct
As the title suggests, this chapter would provide a code of conduct in full.
Chapter 5 - Directory of Lay Lawyers
In keeping with the Family Court’s drive towards transparency, the government, or an independent body, could create a free online directory of lay lawyers which also includes a client feedback section. The directory might include the CV of each lay lawyer, the cases they’ve worked on if in the public domain and the details of any organisation they represent. Client feedback is crucial, and could be monitored by whoever is tasked with looking after the site in order to ensure feedback does not breach any laws, or reporting restrictions.
Chapter 6 - Resources
This final chapter could offer lay lawyers links or details to resources, such as government websites linking to family law matters, useful resources on family law like BAILII and other free information.
This Handbook could be given to both lay lawyers and litigants in person, but the finer details will vary when considering the final proposal, which focuses on whether or not lay lawyers should be able to charge for their services. The consultation proposes that lay advisers should not be able to charge for their services at all. This proposal takes inspiration from Scotland’s current policy, which prohibits the recovery of expenses and fees for such advice. Setting aside the question of whether or not lay advisers should be able to charge for their services, as this is something that practicing lay advisers should debate themselves, the less visible difficulty with this proposal is that lay advisers who do not charge for their time, but who rely on their clients to provide them with travel money and perhaps the cost of a meal if they spend the day in court would no longer be able to offer assistance if covering those expenses was not allowed. This could have devastating consequences for parties who might otherwise be able to have excellent support from experienced and talented lay advisers and would deepen existing concerns surrounding families’ right to a fair trial. Should the proposal to ban fee charging for McKenzie services be implemented, an exception allowing travel costs and food to be covered by the client would be a welcome exemption for many lay advisers who have given up their time to assist free of charge.
At a time when the cost of qualifying as a lawyer is at an all time high, and the family law sector continues to suffer under austerity, lay advisers may unwittingly have become the next generation of lawyer. Often working for free, with their own extensive experience of the system and with a strong sense of civic duty, McKenzie Friends are increasingly well placed to practice law and revitalise the Family Court. They are the lawyers of the future, and we should support them.
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The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.