As pointed out in a previous post, unbundling and the provision of consultancy, administrative or quasi-legal services to clients is a theme that seems set to continue in the market. The Law Society is certainly right to warn of the potential risks inherent in limiting a law firm's retainer for such services.
However it seems slightly surprising to see this conventional advice alongside a suggestion that "professional McKenzie Friends" may become part of the law firm's menu of services. If there is any field of legal services which is likely to create risk for a law firm it is litigation - which is one of the messages behind the SRA's "Walking the line" report yesterday. Recent cases - from the Boreh judgment yesterday to the Andrew Crossley saga demonstrate that not understanding the professional duties of a litigator - both to clients and to the Court - can have catastrophic effects on your business.
If a judge were to perceive misconduct by a litigant advised by a professional McKenzie Friend, I am not convinced that the qualified nature of the assistance provided by the latter would prevent criticism finding its way back to the employing law firm. There is also the question of the training the McKenzie Friend would need, as placing the burden of assessing the risks a fast-moving hearing may present on a relatively junior employee seems to me to be a potential headache for the employing law firm in any event.
Thus there is a risk that an unbundled retainer for advocacy will not look dissimilar to a traditional full retainer. “Therefore you must take extreme care to delineate your unbundled advocacy service from a full retainer by clearly setting out the limits of the service you will provide and what your client must do themselves. Failure to do so may result in your running the risks and liabilities associated with a full retainer.” It said offering a “professional McKenzie Friend service” was an alternative in appropriate cases. “A suitably trained paralegal member of your firm could enable you to provide a McKenzie Friend service for a modest fee compared to the cost of providing advocacy at the hearing.”