The late lamented Bobby Robson once said of Craig Bellamy, he could start an argument in an empty room with himself that lad. And I am left with that same feeling myself on reading the recent newsletter from Chair of the Criminal Bar Association on an LSB commissioned report on the rationale behind the Cab Rank Rule by John Flood and Morten Hviid. In that Newsletter he says this:
In a recent report HERE the LSB conclude the following on the Cab Rank Rule, “We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalized legal services market. By all means the Bar can espouse it as a laudable principle, but it should not pretend that the rule is significant or efficacious.”
And then he says this:
How dare they? This is a further demonstration that the LSB is a politically motivated body whose mission is the wholesale destruction of the publically funded criminal Bar.
Oh dear. It is worth pointing out that, er, the LSB have not said anything of the sort. Follow that rather significant factual inaccuracy with the incantation of a conspiracy theory and one imagines oneself luxuriating in the comments section of the Law Society Gazette. Perhaps the Chairman’s account was hacked by the ghost of Law Society Councils past.
The LSB have not said they support the reports conclusions, they’ve asked for thoughts on them, and otherwise kept their powder dry (though I can’t help but sense there may be a provocation in mentioning Adam Smith in the press release). The report itself is not the LSB’s view but that of Flood and Hviid. Questions there are aplenty for the Cab Rank Rule and it is particularly worth reading the section based on interviews. Clerks utterly perplexed by the irrelevance of the cab rank rule make interesting points.
The cab rank rule is close to being overwhelmed by exceptions. It is much honoured in the breach. And the report comes at a time when the Bar is seeking to make the cab rank rule contingent on their standard terms. I suspect whether solicitors accept those terms will have nothing whatsoever to do with the cab rank rule, providing further evidence of the rules economic irrelevance. Either the tactic demonstrates the rule’s irrelevance, allows solicitors to contract out of the Cab Rank Rule or is to be used as an anti-competitive bargaining chip. None of those three options reflects well on those behind the standard terms policy.
A neuralgic, afactual and inaccurate response to this report is spoiling for a fight that only one side wants. There is a case to be made for a rule which, for all the silly posturing that goes with it, has a plausible claim to much resonance within the Bar (see here for Lucy Reed’s excellent defence). It may even be the case that the rule is strengthened by the modifications floated in the report and the LSB press release. That suggestion is for a non discrimination principle, “You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability” plus the following additional protections that “you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence”. The case made is to modernise the rule and extend it to all lawyers not to parade its virtue whilst weakening its impact. If the Cab Rank really does rule, then the brawling nonsense needs to stop.