Taxi for the cab rank rule
The barristers’ cab rank rule is ‘redundant’ and should be abolished, according to a report published today by the Legal Services Board.
Authors Professor John Flood and Professor Morten Hviid suggest that the rule is ‘regularly breached’, and serves ‘no clear purpose’. They claim its abolition would have no effect on the practice of law or the delivery of legal services.
The report describes the rule, which obliges a barrister to accept any work they are available for and competent to do, as being the ‘defining feature’ of the English bar for several hundred years. Its original purpose was to ensure that unpopular parties could get representation and that barristers were not criticised for acting for them.
It gained particular importance during the IRA’s bombing campaign of mainland Britain.
The report says that a ‘substantial amount of mythology’ has been built around the rule, but suggests it is ‘not really a rule but more a principle masquerading as one’.
While the bar is ‘captivated’ by the cab rank rule and some barristers have an ‘absolute conviction’ that without it, ‘the rule of law would collapse’ there is little evidence that it is understood within the legal marketplace or that it serves any purpose, the report says.
Only self-employed barristers instructed by solicitors are subject to the rule; it does not cover solicitor advocates or barristers doing direct access work.
Exclusions, including the exemption of legal aid work, ‘virtually emasculate’ the rule, the report says. It finds no evidence of the rule being monitored or enforced by the regulator, and that it has never been the basis of any disciplinary proceedings.
In addition, it says it could not be shown that the rule ensured representation.
The report concludes: ‘While it can be lauded as a professional principle enshrining virtuous values, as a rule it is redundant. We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalised legal services market.’
Instead, the report suggests that, as the legal profession moves from being governed by rules to a code of principles or outcomes, it would be more appropriate to consider whether the cab rank rule could be moved to a principles basis.
But, if a rule is deemed to be necessary, it suggests the adoption of the model used in the New York State Bar, which says: ‘You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability,’ modified with the addition: ‘you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence’.
The LSB report describes the New York rule as clear and unambiguous. ‘It protects clients and it can apply to all lawyers, and we see an equivalent in the SRA Handbook. It has no need of exceptions and exemptions, which presently serve only to confound and confuse clients,’ says the report.
Chair of the Bar Council’s professional practice committee, Andrew Walker QC, said the cab rank rule remains ‘relevant’ and is ‘one of the safeguards underpinning the rule of law in our society’.
‘It ensures that even the most unpopular and antisocial are entitled to effective and independent legal representation by a barrister,’ he said.
Walker said: ‘Both history and the situation in too many countries in the modern world show us that it would be complacent and unwise to set aside such safeguards. The difficulties in securing representation for those facing accusations of rape and murder in Delhi shows its value in a liberal democracy.
‘The Bar Council has no doubt that the rule operates in the public interest and in the interests of justice.’
Chair of the Bar Standards Board Baroness Ruth Deech said: ‘We will analyse the report with interest but we are clear that removing this fundamental principle would send out a dangerous message.
‘The cab rank rule protects barristers who take unpopular causes and reassures the public that they are entitled to representation even if their case is controversial in nature.
‘The rule has served the public and the standing of British law well for centuries we have no evidence that it does any harm.’
The LSB has invited views from stakeholders, both professional and consumer.
Read The Cab Rank Rule: Its meaning and purpose in the new legal services market.
Comments
The latest idiocy
The fact that a fundamental principle is not understood by the market place is no reason for abolishing it.
This is a sensible step
This is a sensible step forward. Most other countries do not have this silly rule. Indeed, some other countries view this rule as entirely unethical. This will level the playing field and allow people to receive better representation, and allow lawyers to openly restrict themselves to cases they actually take.
There is no point in having a rule that is not enforced, unenforceable and not generally supported merely because a minority does.
And what is to happen the
And what is to happen the first time a Defendant accused of some really nasty offence - Huntley, or the man who killed Millie Dowler - cannot find representation because every lawyer approached reckons it will cost more work than it is worth?
The defendants accused of
The defendants accused of really nasty offences that are media worthy will not have a problem getting representation because that is exactly the kind of high-level exposure that criminal barristers want. Such exposure is not only fun to have, but also increases business.
Countries across the world
Countries across the world still look to England for guidance on what is right and just - many of them still have the Judicial Committee of the Privy Council as their final court of appeal, many more apply English law. I say keep the cab-rank rule because, as the author says: " Its original purpose was to ensure that unpopular parties could get representation and that barristers were not criticised for acting for them". Does this have any relevance in the modern world? Yes, it certainly does: @legalhackette tweeted earlier this month: "BBC report on Delhi rape trial says no barristers willing to defend the suspects. No cab rank rule in India then". I agree with @HappyConveying when he tweeted "@legalhackette reflects badly on Indian Bar if the story is true...". Let England continue to lead by example – let's keep the cab rank rule.
at last . . .
The reason for proposing the abolition of the "rule" is that it doesn't work as rule; it's too easy to get round and can't be enforced.
Slaughtering this particular sacred cow will stop barristers getting on their high horses about how the "Cab Rank Rule" puts them above any of the vile commercial considerations that they constantly allege undermine the morals of venal solciitors.
Try finding the Radio 4 "Law in Action" programme on the quality of advocacy with Baroness Deech and Lord Justice Moses peddling this pabulum and implying that solicitors only do things becasue they pay, while barristers float above such considerations.
http://www.bbc.co.uk/programmes/b01jwkh8
Working around the Cab Rank
I have never had a barrister outright refuse a case, and as a matter of principle I would only ever send instructions/brief to a barrister who I would expect to take the case unless given very specific instructions by my client as to who he/she/it wishes to use.
I have, however, had an experience where the fee demanded by my client's chosen barrister was deliberately priced so high that my client couldn't possibly afford it. The clerk was absolutely open about it - saying that this eminent barrister regularly advised the other party to the dispute and, while on this occasion there was as yet no conflict, he would need a substantial fee to justify subsequently having to turn away the other work that he expected to be offered.
In other words, not quite "No thanks, don't fancy your client.", but as near as dammit.
Compensation for future conflict
@Tim Child - From what you've said I don't read anything personal into that barrister's motives. If acting for a particular client means that due to conflicts of interest the barrister will have to turn away future work, it is entirely proper for the barrister to adjust their price upwards to compensate for the lost revenue. In my jurisdiction (NZ) this is expressly one of the criteria permitted to be used when setting the level of a fee.
Dislikable Clients
@Andrew and @Anonymous (16:34) we discuss these clients in our report. It is very much as @Anonymous says, the "worse" the client, the more likely he is to get representation. Take for example (mentioned) the accused in the gang rape case in India. The local bar association said no lawyers should represent them. Yet several lawyers came forward, at least one on a pro bono basis, and are representing them. The publicity outweighs any distaste.
It is difficult to find, or conceive of, situations where barristers would refuse cases on the basis of the moral character of the client alone. There was an interesting instance where a lawyer who was being invited to OJ Simpson's defence team requested a "reverse contingency" fee that he would only be paid if he lost the case.
The real essence of the rule concerns money and levels of payment, especially in publicly funded cases.
It is interesting that you
It is interesting that you believe that because a rule is breached, it should therefore be abolished.
Presumably there is much scope to get rid of rather a lot of laws.
Rule of Law
This is a professional self regulatory rule. A bold step to regulate and redefine the profession by government.
Cab Rank
I haven't had any cab rank involvement over 45 years in litigation both criminal and civil, legal aid or private. Horses for courses is and has always been the invariable rule. Pick a Chancery Barrister and say cab rank, you are in the Bailey? The barristers and their able clerks I know are a pretty sensible and robust lot and would tell me off if I tried to be so silly, as I would so advise a client if he demanded unsuitable A as opposed to B who knew his field. It is the solicitor's job to look after his client, not grovel to his whim. If it means telling the client he is wrong and having to go with it, so be it but be sure to advise in writing!
Ever seen a dyed in the wool conveyancer's green face if asked to 'pop down to the local County Court or Mags'?.
Competence
If a barrister is not competent to deal with the matter, he is professionally embarrassed and is duty bound to refuse the instructions: see para 603 of the Bar Code of Conduct. That is an exception to the cab rank rule, not an example of its application.
Selling Widgets
I have seen a barrister decline instructions from a big fish in a lucrative enquiry because instructions from one of the minnows had just beaten the big fish through the door.
It's about fairness and decency and everyone being equal before the law. It's about integrity and the message that integrity is important. It's about the rules leading us to be our best selves and saving us from our worst selves. Sure barristers can still do the decent thing without the cab rank rule but human beings aren't like that. And, anyway, why should they, if they are being told (by abolition) that it no longer matters?
These things are insignificant if we're selling widgets. So, is that what we're doing now? Are we selling widgets?
Eimear Mc Allister
If there is the occasional
If there is the occasional breach it is regrettable but we can live with it because somebody else will take the case. If the rule did not exist at all they might not.
It's not just high-profile crime where it is needed. It is any sort of work where you are opposing powerful interests.
We might get by without it but it's not broke so don't fix it.
Modern academia
Yes, this is what we expect from the half-educated half-wits who become professors nowadays. "The rule is imperfect, so it must obviously be abolished."
Might as well abandon the whole of criminal law, then, since that doesn't punish let alone convict a significant proportion of perpetrators.
What might happen if the rule was abolished altogether has been recently illustrated in India, where the Bar has rushed to announce that it will have nothing to do with defending those beyond-the-pale men charged with the rape and murder of the student on the bus. After all, why imperil your career or endanger your family for fear of reprisals against your representation of such obviously unworthy objects of legal attention?
Cab rank rule for solicitors?
It is widely understood that there is no comparable rule for solicitors, who are thus free to decline new work at whim (although the Code requires that they have a good reason to step out of an existing retainer and can only do so on reasonable notice).
However, the Legal Ombudsman ('LEO') has recently announced his intention to 'accept complaints from prospective customers [of solicitors] who could reasonably have expected to receive a service' from 1 February 2013.
LEO has confirmed that this will mean it will accept complaints from consumers in relation to having been declined services by a firm 'where the reason given for the decline was discriminatory or where no reason was given at all'.
But where a firm declines a retainer with a prospective client who looks 'difficult' (perhaps having recently engaged three or four other firms in quick succession), or for a confidential conflicts based reason, or where initial client due diligence indicates that the prospective client will pose some level of unacceptable reputational risk for the firm (perhaps due to its association with allegations of criminal activity), the firm is unlikely to want or even to be able to provide reasons for the decline.
The response to the prospective client may very well be along the lines: "we regret that we are unable to assist you on this occasion".
It would appear unfortunate if such responses result in floodgates of complaints being referred to LEO and interesting to see if the SRA responds to this new approach by LEO, which could be said to extend the cab rank rule to solicitors by the back door. Will it provide the profession with guidance as to how we should approach declining retainers from unwanted, prospective clients in future?
Re: Modern Academia
Dear @faithless please do read the report for then you would see that we covered the Indian gang rape case. The accused, despite the clamour of the Saket Bar Association, have received full representation. And the lawyers are garnering plenty of publicity as a result. I was actually in India while these events were unfolding and so followed this case and many other distressing ones closely. To give one statistic, there are over 95,000 cases pending in the Indian criminal system. Perhaps lawyers could do something to ameliorate this?
Whatever you think of our educational abilities--just a smidgen ad hominem that--have a look at our analysis and the reasons we adduce for our conclusions. They are based on evidence, or in the case of the cab rank rule, no evidence at all.
Really not very interested in
Really not very interested in the Indian legal system and its problems, strangely enough.
However, the current system in England and Wales seems to work. No, it isn't perfect (what is apart from schemes dreamt up by bureaucrats?) but it works well enough. Any change requires extremely strong justification-and none exists apart from bureaucrats and academics getting paid large amounts of money.
legal aid
has legal aid again corrupted the rules.
happens in courts acroos the land -
where a lawyer is on legal aid - rules can be bent or disregarded.
CPR and FPR rules ignored so why not the cab rank rule?
Taxi for the cab rank rule
I am a member of the Bar, the Employed Bar specifically. At no point have I seen or been sent a copy of the consultation paper by Professors Flood and Hviid, or even an email directing me to it. I sincerely doubt that the authors have actually bothered to speak to any members of the bar or any clerks or instructing solicitors.
This is yet another instance of the Legal Services Board exceeding its statutory remit and interfering in things that are 1. none of its business; 2. outside its remit and 3. clearly the subject of total ignorance on the LSB's part. Yet more evidence that the LSB should be abolished without further delay.
Content of report
Dear @Gladiatrix you will see a link to the report at the bottom of Catherine's article and you can download it from there. It's freely available. If you read it you will see that we have taken into account your concerns by talking to members of the Bar, barristers' clerks, solicitors, and regulators among others.
You might on reading change your mind with respect to points 1,2, and 3 in your comment. If you have any questions, please feel free to contact me. All my details are on my website which you will be directed to if you click on my name at the top of this comment.
Btw, how much did the report
Btw, how much did the report cost us?
Ah, no reply to that one
Ah, no reply to that one then!
Cab Rank rules goes on 31st January 2013
We don't have to wait for the report to implemented as the Bar Council has done away with the Cab Rank Rule.
As from the end of this month it will only apply to cases on the Bar Standard Conditions - if you want to instruct a barrister on any other terms the Cab Rank Rule doesn't.
The Bar Standard Conditions are of course entirely for there to benefit the client and solicitor and not in away way biased towards the commerical interests of barristers . . .
Cab Rank rules goes on 31st January 2013
We don't have to wait for the report to implemented as the Bar Council has done away with the Cab Rank Rule.
As from the end of this month it will only apply to cases on the Bar Standard Conditions - if you want to instruct a barrister on any other terms the Cab Rank Rule doesn't.
The Bar Standard Conditions are of course entirely for there to benefit the client and solicitor and not in away way biased towards the commerical interests of barristers . . .
Isn't it funny how everything
Isn't it funny how everything Professor Flood has said on this thread underscores why we still need the cab rank rule.