Most of the time, you do have to be a qualified legal practitioner to be able to represent someone else in court, such as a solicitor or barrister. This obviously benefits lawyers but it benefits you because lawyers are trained and experienced in attending court.
One reason for the reluctance of the court to allow just anybody to represent a defendant is the fact that lawyers are bound by specific rules which include an ethical code of conduct.
This governs the way that they can handle a case.
Obviously, those who are not qualified legal practitioners are not bound by the same regulations.
There is also a danger that a non-lawyer is uninsured. This means that they could potentially be putting you at risk.
Only on rare occasions will someone not qualified be allowed to speak to the court on behalf of a defendant.
One example of this is a Western Australian case, where the judge allowed two law students to represent a defendant in a criminal trial after legal aid was refused.
But the court stated that this was a “rare and exceptional” case, and was due partly to the fact that the accused suffered a severe hearing problem and when he spoke, it was hard to comprehend him.
In criminal cases heard in NSW, the law is that an accused person can be represented either by themselves, by their lawyer, or by anyone else who the court permits to represent them.
This means you will generally have two choices in court: get a legal representative or appear personally.
It is rare for a court to permit someone else to represent you and will only be granted in exceptional circumstances.
If you appear personally with no legal representation, you are allowed to bring along a person known as a McKenzie friend.
A McKenzie friend is someone who is not necessarily legally qualified but you may wish to have them with you in court anyway.
This person will not be allowed to represent you but they can inform you, support you and offer you advice on how to proceed.
A McKenzie friend may be useful if you don’t have a solicitor or barrister and would like the assistance of someone else.
Perhaps your McKenzie friend has legal knowledge but does not hold the right qualifications to represent you in court.
This may be the case if they are a lawyer overseas, or their practising certificate has expired and they did not renew it.
Alternatively, they may have no legal training at all.
This idea was cemented in our common law by an English case in the 1970s, which confirmed earlier case history.
The man in this case was going through a divorce from his wife. Although he was initially granted Legal Aid, by the later stages of his case, the legal aid was terminated.
Mr McKenzie was left without legal representation. His former solicitors decided to help him out and they did this by sending an Australian barrister to court with him free of charge, the idea being that the barrister could assist him.
Because he did not hold the relevant British credentials, the Australian barrister could not represent Mr McKenzie, but he intended to sit beside the husband in court and prompt him.
In court the trial judge did not allow this, stating that the Australian barrister was not entitled to help the husband.
Mr McKenzie appealed this decision by the trial judge and he was successful.
Every litigant is entitled to the help and support of a friend in court and the denial of this result may mean that natural justice is also denied. This case determined that a McKenzie friend is allowed to:
- Prompt a litigant
- Give advice
- Make notes or suggestions
- Suggest ways that the litigant could cross-examine witnesses
An unqualified lawyer cannot represent someone in court – that is, they cannot speak on behalf of the person involved in the case – but they can give general information on how to conduct the case, including suggesting which witnesses to call etc.
Exceptions where a McKenzie friend may actually represent in court will be very rare. Their role will be restricted to advising the party to the proceedings.
Another possible exception to the rule that only lawyers can represent you in court is where the court attendance is very straight-forward, such as a ‘mention’. Mentions include early court dates when you simply wish to adjourn the case to another later date. A person may ‘see the leave of the court’ to mention a case on your behalf. However, the court will only grant the ‘leave’ (ie permission) if the person has some form of legal training eg is studying law and is employed by a law firm as a legal clerk.
In the case of McKenzie friends, the court will normally need a good reason to exclude them.
In some cases, the court may remove someone acting as a McKenzie friend from acting if their conduct is such that it impedes the efficient administration of justice.
Examples of this would be if the McKenzie friend uses the litigant as a puppet, indirectly running the case, or being disorderly.
If the McKenzie friend wastes time or causes long delays unnecessarily, the court should give them a warning. If the behaviour continues, they may not be allowed to assist anymore.
However this intervention is rare as it is a general rule that a person who wishes to have a McKenzie friend present should be allowed to do so.
Anyone appearing before a NSW court anytime soon has the right to a McKenzie friend. Just remember that they must obey court rules and are not actually allowed to speak on your behalf or waste the courts time.
In addition, remember that a McKenzie friend is not a lawyer – there is a reason why they are not qualified, so remember that their advice may carry a risk.