Most of us in the US are unaware of a fascinating approach that the UK (and indeed most Commonwealth countries) use to assist in access to justice for those without lawyers. It is an approach that permits non-lawyers to sit with the self-represented litigant and provide support in the presentation of the case. Compensation for such assistance is not prohibited. Perhaps the best way to give a flavor of what this means is to post, in its entirety, the recent proposal as part of a report to the Lord Chancellor and the Lord Chief Justice by the Civil Justice Council of England and Wales for A Code of Conduct for those playing this role, called “McKenzie Friends.” I have discussed this option with judges in the US and some anxiety has been expressed here about the potential for courtroom disruption. I hope that the items in the proposed Code of Conduct will provide reassurance that these risks can be controlled by appropriate use of judicial discretion.
Suggested Draft Code of Conduct for McKenzie Friends
1. When someone involved in a court case asks another person to assist, not as a lawyer or a witness but as a friend, the person assisting is often called a “McKenzie Friend”.
2. This Code of Conduct summarises what is involved if you are asked to be a “McKenzie Friend”, and what the Court will expect of you.
3. Detailed guidance (the Guidance) was issued on 12 July 2010 by the Head of Civil Justice and the Head of Family Justice, and you should read that. It is available online at http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/mckenzie-friends-practice-guidance-july-2010.pdf and a hard copy can be obtained from [ ]. (Note: this is a UK court Practice Guidance: McKenzie Friends (Civil and Family Courts)
4. If you follow the Guidance and this Code of Conduct then your involvement may be of material help to the person you are assisting and to the Court.
5. If you have a financial interest in the outcome of the case you should normally decline to assist.
6. If you have a personal interest in the outcome of the case then before agreeing to assist you should think about whether someone else who does not have a personal interest might be better placed to assist.
7. You may attend the hearing of the court case unless the Court says you cannot.
8. You may read the papers for the court case unless the Court says you cannot.
9. You should let the staff at the Court know as soon as you arrive that you have been asked to assist.
10. You should bring a short curriculum vitae (cv), and if you are asked by the Court staff to complete a short set of questions about yourself you should do so.
11. If you are being paid to assist or if you regularly assist a number of different people as a McKenzie Friend then you should make the Court aware of that.
12. The Guidance makes clear that you may provide moral support, take notes, help with case papers and give advice to the person you are assisting.
13. Normally the person you are assisting will be the one to speak to the Judge. But if that person cannot manage, the Judge may let you speak instead.
14. You must always follow any instructions given by the Judge.
15. If the Judge asks the person you are assisting to do something, please encourage them to do it, and remind them of any deadlines.
16. You should be courteous at all times to everyone else.
17. You should try to ensure that the way in which you assist does not cause any disruption or distract others. This is particularly important when someone else is speaking to the Judge or the Judge is speaking.
18. You must behave with honesty and not do anything that might mislead the Court or anyone else.
19. You should consider at regular points whether the person you are assisting might also be helped by attending a Citizens Advice Bureau, Law Centre or Personal Support Unit. If you conclude that they might, you should give genuine and conscientious consideration to encouraging the person you are assisting to seek that further help. If may be very helpful if you go with them.
20. Please remember at all times that you are there to assist someone else, and not on your own behalf.
The above linked Practice Guidance further clarifies what a McKenzie Friend can and cannot do:
What McKenzie Friends may do
3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case papers; iii) quietly give advice on any aspect of the conduct of the case.
What McKenzie Friends may not do
4) MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses. (Note by RZ: this last appears to me arguably inconsistent with number 13 above, permitting the person to speak to the court if asked by the judge.)
However, this is not the end of the matter. There is an additional concept, called the “lay representative,” who, while not a lawyer admitted to practice in the court, can be allowed to play the above prohibited roles. While there is much language in the above linked Practice Guidance about the reasons courts should be reluctant to allow lay representation, it gives the following as exceptional reasons for allowing it:
21)Examples of the type of special circumstances which have been held to justify the grant of a right of audience to a lay person, including a MF, are: i) that person is a close relative of the litigant; ii) health problems preclude the litigant from addressing the court, or conducting litigation, and the litigant cannot afford to pay for a qualified legal representative; iii) the litigant is relatively inarticulate and prompting by that person may unnecessarily prolong the proceedings.
It should be noted that McKenzie Friends are limed in what they can do, but can be used as a general matter as of right, while lay representatives can do much more, but are permitted only as a rare exception. In any event, both permit far greater access assistance to the self-represented than is allowed in the US.
It might help the argument in favor of experimenting with such approaches it should be noted that the Report asserts (at page 53-54) that “general view from judges and staff was that on balance it was better to have McKenzie Friends than not,” that staff from Citizen’s Advice Bureaus (sort of like self-help centers but with a much much broader mandate) might be permitted to speak, that standard threshold questions might be developed to assist judges, and that college students already provide McKenzie Friend services in one court.
Those interested in more information should read Richard Moorhead’s article, Access or Aggravation? Litigants in Person, McKenzie Friends and Lay Representation, 22 Civil Justice Quarterly 133 (2003).
Please share in the Comments your thoughts on how an idea like this might be made appropriate for, and tested in, the US.