Both sides in a case deserve the best representation.

There was an intriguing story on the front page of the New York Times recently, reporting that top US law firms are refusing to represent one side in the Supreme Court cases soon to be decided on the constitutional right to same-sex marriage.

Can you guess which side?

A few years ago, it would doubtless have been the side supporting same-sex marriage. But now the leading firms do not want to be seen arguing against such marriages, and so won’t take on the work.

The article points out that there is no US right to counsel in civil cases (it is different in criminal cases). Generally, the US legal profession has a proud history of representing unpopular clients. John Adams, the second US president, acted for British soldiers accused of murder in the 1770 Boston Massacre. There has been no shortage of leading law firms to defend detainees at Guantánamo Bay.

But apparently some lawyers have been forced out of their firms for agreeing to take on clients opposed to same-sex marriage. It is not that both sides do not have lawyers before the Supreme Court – it is that they do not have lawyers from what are considered to be the most experienced firms.

A number of points arise.

First, there is a small side issue. Why am I always reading interesting stories about the legal profession in the New York Times, and never in the UK’s mass circulation daily newspapers? If I look back on the sources of my articles, I find that the New York Times has provided various good leads – on the spread of unbundling of legal services, on lawyers lobbying in Brussels, and about a big law firm spied on by the government. Come on, UK journos – put on your imagination specs, so that we can read interesting items about ourselves on your front pages.

More seriously, the story raises questions about the cab rank rule. I hope that the state of affairs reported in the New York Times would not occur in our jurisdiction. It is interesting that the liberal side of the argument, which presumably supports equality of arms, and the right of both sides of a case to be heard fairly, is the one refusing to help out. It should not matter what one’s views are on gay marriage (I support it). If there is a case to be argued before the Supreme Court, both sides deserve the best representation. Lawyers are not to be identified with their clients’ causes.

In England and Wales, there has been an interesting spat over the cab rank rule for some years. The Legal Services Board spent over £20,000 commissioning a report from two academics, published a couple of years ago. It recommended removing the rule from the bar’s Code of Conduct, which provoked a furious reply from the Bar Council and Bar Standards Board.

The Law Society recently questioned the rule, saying it was rarely invoked. There is no such rule for solicitors, and the Society said that there were ‘no cases where individuals with properly funded and arguable cases have not been able to find solicitors to represent them’. Well, that may be true, but does not answer the gay marriage case here, where there are lawyers on both sides, but those which are considered to have the best experience of arguing such cases are on one side only. Is equal access to the best representation not part of access to justice, equality of arms and the intrinsic value of the adversarial system?

The Bar Standards Board will in due course review its Handbook, including the principle of the cab rank rule. For the time being, it has just issued a consultation document (closing date: 19 June), with the sleep-inducing title of The Cab Rank Rule: Standard contractual terms and the list of defaulting solicitors. (Is it any wonder that the UK daily press keeps away from lawyers?)

The consultation document describes the rule as: ‘The effect of the cab rank rule is that barristers cannot choose their clients. On the contrary, all clients have equal access to the bar, each having a full range of choice of any advocate who is unconflicted and available for the work, whatever the nature of his or her case. In effect, the cab rank rule is a public interest restriction on barristers’ normal freedom to contract (and hence to compete on an equal footing with other legal professionals in the marketplace).’

I know it has exceptions and that there are many ways around it, but, to avoid the problems found with the same-sex cases in the US, I say long live the cab rank rule in this jurisdiction.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs