By Craig Johnson, NALP Licensed Paralegal & Professional McKenzie Friend
Since 2013, with cuts to legal aid and the average person unable to afford to hire expensive legal professionals, new types of “Lawyer” have arisen; the McKenzie Friend and the Paralegal.
Although neither are technically Lawyers, they can help people with legal issues. For example, both can help litigants with court proceedings. However, beyond that, Paralegals and McKenzie Friends differ greatly.
This article addresses the differences between McKenzie Friends and Paralegals.
The McKenzie Friend
The right to a McKenzie friend was established in the 1970 divorce case of McKenzie v McKenzie. Ian Hanger, although qualified in Australian law, was not allowed to practise as a Barrister in London as he had not gained English Legal Qualifications. Mr McKenzie instructed Mr Hanger to represent him, but the court refused.
However, the court did allow Mr Hanger to sit observe proceedings, taking notes and advising Mr McKenzie during adjournments. Mr Hanger proposed he should be allowed to sit next to Mr McKenzie and advise him quietly, but the local county court denied this.
When Mr McKenzie lost his case, he appealed to the Court of Appeal, stating that he was denied the right to reasonable legal assistance which led to him losing his case. The Court of Appeal ruled that a “McKenzie Friend” could be allowed to all Litigants in Person (LIPs) unable to afford legal assistance. Furthermore, a judge should only deny a McKenzie Friend whom they deem unsuitable. Over time the role has evolved, and now many Litigants in Person (LIPs) hire a McKenzie Friend to attend court with them if they cannot afford a solicitor.
Today various types of McKenzie Friends assist litigants within court proceedings. One type – the Professional McKenzie Friend – usually charges a fee for their services 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 recognised 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 and may not charge their client.
Sometimes, a McKenzie Friend will be a family member assisting their child, sibling or parent in court. Technically, a McKenzie Friend can be anyone that the judiciary finds appropriate –legal expertise or experience are not necessities. They are there to provide moral and emotional support, and a second pair of eyes and ears.
Paralegals are somewhat different. A Paralegal can be someone who assists a law firm or a solicitor in preparing cases for court or running legal duties within the firm. Alternatively, they can operate on their own, i.e. not within an existing solicitor practice.
Established initially as a type of legal assistant, the role of Paralegal has now progressed into a profession of 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 the 2003 establishment of 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.
Usually, Paralegals are only recognised as such if they are qualified through education and experience and have completed a recognised course, like NALP’s Level 4 Diploma in Paralegal Studies, and belong to a membership body, like NALP. The court will only allow a Paralegal to represent in court if they are retained and supervised by a solicitor and the court deems them fit to conduct litigation. This is not an automatic right for the Paralegal who is working within a solicitor’s firm: the court must decide on an individual basis if a Paralegal may speak.
Many Paralegals now regularly 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 3 years of experience, an Ofqual-recognised 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, thereby limiting what an experienced Paralegal can do.
So, what do consumers need to know before hiring a Paralegal or McKenzie Friend?
Firstly, they must ensure that the Paralegal they hire belongs to an organisation, like NALP, and they have a Licence to Practise. Secondly, they need to check their qualifications; a “Qualified Paralegal” is someone who has undertaken a certain level of professional Ofqual recognised training and understands their level of law in-depth. Thirdly, the consumer should find out whether the Paralegal is attached to a Law firm or if they are an independent entity that 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 those 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 provide the consumer with the widest choice.
In summary, the key difference between a McKenzie Friend and a Paralegal is that a McKenzie Friend can be anyone, whereas a Paralegal is a legally qualified person who can perform most of the same tasks a Solicitor can. 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 soon there will be separately drawn up regulations – like Solicitors and Barristers have – which will help progression within the profession.
As a Paralegal and Professional McKenzie Friend I have worked in both roles. I believe a Licensed Qualified Paralegal, running their own independent Paralegal Firm should be treated as a separate entity to a McKenzie Friend; their roles are entirely different and combining them makes the process of litigation, for legal professionals floating between the two, more complex. Additionally, for the consumer, this is more confusing to understand.
Separating the two and recognising them both as different entities with different guidelines, will mean a more functional and operational judiciary.
ABOUT THE AUTHOR
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 Paralegal (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) is a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its training arm, NALP Training, trading as National Paralegal College, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.
See: http://www.nationalparalegals.co.uk and https://www.nalptraining.co.uk/