Exceptionalism and the Cab Rank Rule

With some trepidation I step into the hornets’ nest that is the Cab Rank Rule debate. It is a debate littered with ironic parenthesis from professional bodies; a mutually assured contempt of insider or outsider depending on which tent one is within; the correction of split infinitives (sic) and, horror of horror, incorrectly positioned footnotes.* Okay, some of those things are not important. Let’s cut to the substance.

Let me start by saying that in important respects I agree with the main thrusts of the substantive arguments presented by the Bar. Firstly, I tend to agree that the rule does no harm. Secondly, I tend to the view that it probably does some good. (See here for the contribution via the BSB and here for the Bar Council paper). I agree that there may be some occasions where a client with an unappealing or unpopular case can be helped by a cab rank rule. I suspect that the cab rank rule may or does discourage barristers from declining to accept the instructions of such clients on occasion. I agree also that this would be difficult to prove or disprove from disciplinary data. I think the economics of infamy would tend to mean a lawyers’ practice was not harmed by representing odious clients (that the publicity from representing unpopular clients may improve a lawyer’s client base rather than damage it), but I think the risk of odious clients not getting representation is sufficiently – if rarely – present to be meaningful and to justify the rule.

Similarly, the claims that the cab rank rule can be, and is sometimes, used to prevent big clients ‘scooping the pool’ are not to be sniffed at. That is, imagine I (a bank) instruct you on matter A to make sure I get all the good banking lawyers advising me and then you get instructions to sue me from a depositor on matter B. You might be able to resist my complaints on the basis of the cab rank rule. I suspect that plenty of practitioners specialise in one side of the dispute or the other; my economic power means you would be taking a risk with the future of your practice in your hands; and my objections on confidentiality would have to be given much thought, meaning this happens rather rarely, but let that pass. Rarely does not mean never and rarely in the absence of harm is probably good enough to maintain the rule, or something like it.

I also agree with the argument that the cab rank rule provides something of a prophylactic when a barrister meets public hostility for representing a Levi Bellfield or for cross-examining a Frances Andrade. It is true that there is already a rule that the barrister fearlessly represents their client which covers the point and, of course the cab rank rule does not legitimise improper defence behaviour; but I see the rule has a useful – albeit somewhat misleading- explanatory power with the public.

I am not sure a lot is gained by considering whether or not the rule is “always observed” or “is regularly breached”. Much is made of the “unfounded” nature of the claims that it is regularly breached; but both sides of the argument lack persuasive evidence on the point. Breach is too unobservable to be truly measurable. Neither researcher, nor solicitor, nor senior member of the Bar nor judge can truly know what is happening in this regard. It is also a legitimate and rather too swiftly dismissed point that the exceptions to the Cab Rank Rule (both formal and pragmatic) are wide enough to permit any reasonably competent barrister to get out of a cab rank brief should they want to without breaching the rule save within the confines of their own conscience. Equally, the obverse is true: the rule supports, with diminishing symbolism (see below), those that wish to hold to ancient values which the rule supports.

This brings me onto my real beef with the way the cab rank rule is used. This returns us to the position with the exceptions. I am not going to deal with all of them. I am going to “hand-pick” [n.b. parenthetical emphasis probably indicative of some sinister bias on my part] three.

Firstly, let me turn to legal aid. Most criminal legal aid cases are conducted on graduated fees including the kinds mentioned in the Bar Standard’s press release on today’s report. Graduated fee cases can be turned down on the basis that the fee is not a proper fee (if indeed it is not a reasonable fee). This exception to the traditional way the Cab Rank Rule had operated for legal aid cases was permitted as part of the bar’s understandable concern that the then Government was cutting legal aid too much. Offending their properly cherished belief in access to justice, the Bar took the view that it should extend that erosion by weakening the Cab Rank Rule. The justification is that legal aid fees cannot be deemed as proper fees and so barristers could be free to turn them down in appropriate circumstances. What this really means in practice, I suspect (if it has any impact at all), is this: criminal defence practitioners with economically healthier practices can turn down work on the basis that it is not as remunerative as other work by arguing the fee is not a proper fee (or more likely finding some other excuse). This may mean (I speculate) that better barristers find it easier to turn down cases in good conscience. The idea that a legally aided defendant can have the barrister of their choice is formally weakened by both legal aid cuts and the weakening of the cab rank rule (I say ‘formally’ because I do not know whether this is really happening in practice). The more ethical approach, although it is easy for me to sit here and type this not having to eat what I kill in terms of fees, would be to say: if you take legal aid cases you are bound by the cab rank rule and cannot assert that fees in some cases are not proper fees. The Bar chose not to say that. The Cab Rank Rule does not look so cherished as a result.

The second example is Direct Access. My understanding is that the Cab Rank Rule does not apply to such cases. I do not understand why not. If a barrister decides to offer direct access and the case does not fall within one of the existing exceptions to the Cab Rank Rule then why not require them to take it on? If the Cab Rank rule maintains its relevance to the rule of law, why not here? Indeed, direct access cases may be those where the need for a cab rank rule is most acute. Let us follow the logic of a position excluding direct access clients. Those who want or need the benefit of the cab rank rule would always have to first get professional representation. This would be (usually) from a solicitor not operating under the cab rank rule before getting representation from an advocate operating under the Cab Rank Rule. That rather undermines the case that a Cab Rank rule is necessary in the first place. The moral virtue of the Cab Rank rule appears to be contingent on those who do not have the rule. Perhaps, and I emphasise I say this tongue in cheek, only barristers need principles.

My third example is the way in which the Cab Rank Rule appears to be being used as bargaining chip in arguments about standard terms of business. If I have understood it correctly, the current proposal is that those clients of solicitors who do not agree to standard terms set out by the Bar will be denied the benefits of the Cab Rank Rule. This is odd on a number of levels. Firstly, it seems to be a rather disproportionate response. If a solicitor proposes business on unreasonable terms it would be within the right of the Barrister to turn down the case on the basis that it was not a reasonable fee (or if I am wrong in that an exception could be drafted to cover it which is more proportionate than the blanket exclusion of the rule). Equally, one imagines (indeed has observed) some head scratching bemusement amongst solicitors as to why they or their clients should give two hoots. In this sense the Bar threatens to remove cab rank protection when it is only they who imagine it is a significant protection.

The point about each of these exceptions is that on occasions when the Bar is faced with something it does not like it holds up the Cab Rank Rule as a sign of its own virtue and diminishes it in a sort of ritual sacrifice. It is a kind of conversation with itself that narrows the Cab Rank Rule and erodes its symbolic power.  A power with an effect that is most keenly felt, if it is felt at all, within Bar’s own conscience. Maybe, if the Bar really believes in the Rule, it should seek to reverse that trend and rethink how they deal with exceptions. If they do not do so, they can expect some scepticism when they emphasise the Cab Rank Rule as a signal of significant virtue.

*The author acknowledges that only he and an assorted, somewhat strange, band of publishers and law librarians give tuppence halfpenny for this.

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