I have a lot to finish writing up by way of case law – a post underway on narrowboats, the Canal & River Authority and Article 8, and two new court of appeal cases popped up today on Introductory tenancy notices and not occupying as principle residence, to add to the list.
But, those take time I haven’t had. And then, what has exercised/exasperated me over the last couple of days is something that I hope to be able to deal with briefly. That being fee charging McKenzie friends, law students and University law schools.
Via Prof Richard Moorhead on twitter, I came across ‘McKenzie Marketplace’. Initial suspicion as to their site’s claim to be ‘supported by BPP University Law School’, turned into outright astonishment when this BPP blog post confirmed it was so (and apparently also University of Westminster). Indeed, people confirmed that there was a banner poster for ‘McKenzie Marketplace’ up at the Holborn campus of BPP yesterday.
Now, we should be clear what McKenzie Marketplace is. It has been set up by ‘managing director’ Fraser Matcham – a law student at Uni of Westminster and ‘Entrepeneur’. The business is:
- Matching fee charging McKenzie friends to clients (including law students as McKenzies)
- This is wholly unsupervised activity.
- Taking a 10-15% cut of the fees.
- Law students charged out at £25 per hour, others (with no qualification at all necessarily) at £90 per hour
- Fess paid via MM’s account – so holding client money
- All communications to be through MM’s communication system (Ostensibly for data protection, but obviously to prevent any private deals). We’ll come back to data protection in a minute.
- All McKenzie friends signing up to MM have to have ‘professional indemnity insurance’. It appears, though this is less than clear, that this must be with insurers arranged by MM. It is also far from clear what such insurance would cover.
The MM terms and conditions are here, and repay very close reading for anyone even idly toying with the thought of signing up.
I put a series of questions to BPP on twitter on Tuesday evening, and to Peter Crisp, BPP head, hoping for a response today.
Sadly, so far, (and despite articles on the Gazette website and a lot of tweets from others too) BPP have not made any response at all. Not a peep.
But Mr Matcham did pop up, asking me if I had any questions for him. I did. I don’t think he liked them.
Thing got a bit… evasive. Or at least not at all clear.
On ‘quasi regulation’
‘Quasi-regulation’ remains a steaming pile of horse ordure. I’m sorry if that is not constructive and ignoring the potential. A private company signing up McKenzies is not a regulator and the sector is not regulated. To even quasi pretend otherwise is, at the very best, misleading.
Not commenting on difficult questions was a recurrent theme. But onwards, on to professional negligence and insurance.
The simple question – how could a McKenzie be professionally negligent in giving legal advice (something that Mr Matcham has claimed their insurance covers), when there are no professional standards for a McKenzie to fail to meet – was not answered.
What is more, MM’s code of conduct and T&Cs make no reference whatsoever to any standard of competence in legal advice for their McKenzie ‘members’. It is, let us be clear, not a requirement of membership of MM.
Lastly, when it turned out that McKenzie Marketplace Ltd was not registered as a data controller with the ICO (I did check), despite insisting that all information and communications with clients go through their system:
But the site is live and apparently dealing with personal data. A little bit of a criminal offence, data lawyers have told me.
After this, the public shutters went up
Why is this important?
I am pretty sure that seeing the utter mess that a well meaning law student ‘assisting’ someone can make of the case is not an experience that is unique to me.
Law students do not have any practical experience, they often have an inflated conception of their own abilities and they rarely know the law involved in the kind of matters that this site will attract.
There is no supervision here, no control, no attempt to ensure that advice and assistance is accurate, practical and in the best interests of the client.
And yet, the students will charge fees, and MM will take their cut. And the client has no realistic recourse if the student’s ‘legal advice’ turns out to be catastrophically bad (and believe me, I’ve seen missed limitation dates, wrong heads of claim, claims and defences dismissed, evictions, and substantial costs liabilities because of ‘advice’ from law students).
And of course, there are law students who have completely messed up their own futures by being bad McKenzies,
All of that would be bad enough, but then there is the support of BPP (and maybe, though less clearly, the University of Westminster).
Look at the wording of that blog post by BPP. Mr Matcham is quoted, uncritically as saying:
“Most forms of legal experience provided by the profession is mundane and does not expose aspiring barristers and solicitors to real practice.Acting as a McKenzie Friend not only promotes social mobility within the legal sector but allows aspiring barristers and solicitors to put their skills and knowledge into practice in real cases.”
Well mostly real practice is mundane. Even in litigation. Non-contentious work is obviously deeply dull throughout, but even most litigation is periods of boredom interspersed with moments of pure adrenaline, Anybody promising that real practice is not mundane is either completely lacking in experience, like Mr Matcham, or selling you a line, on which the jury is out as regards Mr Matcham. And as for putting skills into practice in real cases, well, law students have no practice skills – not yet – and McKenzies have no rights of audience, so that is another moment of creative thinking by Mr Matcham.
Social mobility? I can safely say that ‘acted as fee charging McKenzie friend’ is not something that I or anyone else I know would regard as an enhancement on a CV. Quite, quite the reverse.
And BPP say:
The potential practical experience that law students, graduates and postgraduates would be able to obtain provides a meaningful way of putting legal skills and knowledge to the test in real cases and real courts.
Professor Peter Crisp, Dean and CEO of BPP University Law School, said: “This is an excellent opportunity for final year law students, graduates and postgraduates to put their learning and knowledge into practice.”
No, no, it just isn’t. It is a way for students to charge money to desperate and often vulnerable people while carrying out unsupervised legal advice and, god help us, attempting to be allowed to do advocacy.
There are supervised student law clinics and other, supervised, ways for students to do pro bono work while gaining valid, proper experience. Volunteer with a Law Centre. Do FRU work. Try to get experience with an actual, real practice.
Yet, astonishingly, BPP chose to support and recommend a set up that, on all the available evidence, lacks any understanding or experience of legal work, where the insurance position is to say the least obscure, which has failed to comply with relevant data protection law and which pretends to be a ‘quasi-regulator’ with no knowledge or understanding of what regulation actually is.
This is a disaster waiting to happen and BPP’s actions are foolish and, given their position as a professional educator and trainer for legal practice, quite, quite appalling.
Meanwhile, even after today’s fuss, the Mr Matcham retweeted the MM account:
Barrister and solicitors? You know what, I don’t believe him. Also, they should not be taking personal data for processing while still not registered as a data controller. That being a criminal offence and all…
(Update – here is Lucy Reed’s considered, strong piece on the whole affair at Pink Tape)
(Update. University of Westminster said
This isn't a formal UoW initiative. However, we encourage & support students developing their own enterprise/entrepreneurial ideas.
— University of Westminster (@UniWestminster) March 23, 2017
Which is not saying anything at all. There is still complete silence from BPP)
(Update. In a new piece in Legal Futures, Mr Matcham says:
[MFs] must also have professional indemnity insurance.
At the moment, he refers would-be members to two particular insurers, but he is working on a package that could be offered through the site.
The insurance cover (and what it is for) gets murkier yet, if any exists. And then
Struck-off lawyers could join the site if they were not in breach of the code of conduct, Mr Matcham said.
Oh joy, how responsible.
Then, though this is presumably gleaned from Mr Matcham, who has shown himself to be a booster, there is this
The universities have helped in particular with the code of conduct and a McKenzie Friend Guidebook.
If this is true, given the deficiencies in both so clearly set out by Lucy Reed, then both BPP and University of Westminster have serious questions to answer.)