McKenzie Friend & Paralegal – The Key Differences

court representation - mckenzie friend paralegal or solicitor

You know things, we all know things – some useful (i before e, except after c), some less so (only one King in a pack of cards doesn’t have a moustache). But sometimes we only think we know things. For example, if you need to go to court, you must employ a solicitor … right?

Wrong!

There are alternatives: the McKenzie Friend and the Paralegal.

In the sense that a layman may understand the term lawyer (fun fact: lawyer, unlike solicitor, is not a protected term) neither the McKenzie Friend nor the Paralegal are lawyers, but both can help you with legal issues.

There are, however, some important differences.

McKenzie Friend

We need to go back several decades to explain what a McKenzie friend is.

In 1970, Mr & Mrs McKenzie were going through the process of divorcing each other. Mr McKenzie instructed Ian Hanger to represent him. However, although qualified in Australian law, Mr Hanger did not have any English Legal Qualifications.

Without the required qualifications, Mr Hanger was not permitted to practise as a barrister in London, but the local county court did allow Mr Hanger to sit as an observer, to take notes and to advise Mr McKenzie during adjournments.

Mr Hanger wanted to be allowed to sit next to Mr McKenzie and advise him quietly, but the court denied this.

Mr McKenzie lost his case, and in his appeal, he argued that he had been denied the right to reasonable legal assistance and that this caused him to lose his case.

The ruling of the Court of Appeal was that a McKenzie Friend could be allowed to all Litigants in Person who are unable to afford legal assistance, and that judges should only deny a McKenzie Friend whom they deemed unsuitable.

From this precedent, the role evolved and today there are various types of McKenzie Friends assisting litigants within court proceedings.

A Professional McKenzie Friend 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. Technically, a McKenzie Friend can be anyone that the judiciary finds appropriate who can provide moral and emotional support, but most Judiciaries only classify a Professional McKenzie Friend as someone with a recognised legal qualification.

Another type of McKenzie Friend is an agency worker – this could be a Social Worker, or a Mental Health Nurse, or a person appointed by Citizens Advice – who may not have any professional qualifications in law and is not charging the client.

A McKenzie Friend can also be a family member assisting a child, a sibling or a parent throughout a court case.

Paralegal

Paralegals are different. Paralegals can do almost everything a solicitor can do; there are some reserved activities that remain the preserve of solicitors.

A Paralegal can be found operating on their own, or assisting a solicitor in preparing cases for court, or running legal duties within a law firm.

First established as a legal assistant, Paralegal is now a profession in its own right. This profession was unregulated until 1987, with the forming of the National Association of Licenced Paralegals (NALP), and sixteen years 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.

These days. many Paralegals 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 that is a part of the Solicitors Regulation Authority (SRA).

However, there can be challenges for independent Paralegal firms.

Although most Paralegals running their own practice have at least three years’ experience, have obtained an Ofqual recognised qualification, and a Licence to Practise – i.e. they have been vetted and proven competent – the judiciary often treat Paralegals in accordance with McKenzie Friend Practise Guidelines, limiting what an experienced Paralegal can do.

Considerations when hiring a Paralegal McKenzie Friend

When considering hiring a Paralegal or using a McKenzie Friend, what do you need to know?

Make sure they belong to an organisation (such as NALP) and that they have a Licence to Practise.

Check their qualifications; a Qualified Paralegal will have undertaken a certain level of professional Ofqual recognised training and they will understand their level of law in-depth. And establish whether the Paralegal is attached to a Law firm or if they are an independent entity and can assist you through the court process.

Some McKenzie Friends have obtained relevant legal qualifications or they may be an ex-practising solicitor, but be aware that a McKenzie Friend, even a Professional fee-charging McKenzie Friend, can be someone who is not professionally qualified, and their experience may be limited (perhaps nothing besides litigating a past case of their own).

A list of qualifying McKenzie Friends can be obtained 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, such as the McKenzie Friend Organisation, have a variety of McKenzie Friends, some are qualified and some are not; the McKenzie Friend Organisation aims to allow consumers a wide choice.

Summary

A McKenzie Friend (professional or not) can be anyone; a Paralegal is a legally qualified person who can perform most of the same tasks a solicitor can (remember there are reserved activities).

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

About the author

This guide has been written exclusively for ByteStart by Craig Johnson A.NALP, from Johnson’s Paralegal Services. Craig is a NALP Licenced Paralegal and a Professional McKenzie Friend, a Member of the National Association of Licensed Paralegal (NALP); a Full Professional Member of The Society of Professional McKenzie Friends (SPMF) and a Full Professional Member of The McKenzie Friend Organisation (MFO).

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