Cab Rank Rule: A Badge of Convenience?

Canny observers of the Cab Rank Rule debate know that the real meat is not to be found in whether the rule is valuable (interesting and more finely balanced than the furore over the Flood and Hviid report would suggest) but in how the Bar and now its regulator have approached the exceptions. The SRA, in the guise of an outgoing director, have taken the unusual line of criticising their fellow regulator in strong terms for dancing to their representative body’s tune. Coming on the back of the LSB’s rather concerning investigation into what is somewhat delicately described as influence it is a severe embarrassment to a regulator which has struggled to win the confidence of anyone (save perhaps chairmen of the Bar Council who, if I recall rightly, have been moved to praise their effectiveness on more than one occasion). This is not because there are not fine individuals working within the organisation (there are). And it is partly because their job is a difficult one (show me a popular regulator and I will show you a popular Lord Chancellor, on March 6th in fact). History will judge, says he portentously, but I cannot see it judging kindly without rather firm change. Their handling of the Cab rank debate is one such example where a different approach may have been wiser. The BSB’s response to the Barrass battery is this:

“It is not the role of the regulator to define how much barristers get paid but it is our role to protect regulatory principles that are core to ensuring access to justice. If the BSB hadn’t acted quickly, the cab-rank rule would have been inadvertently undermined.

“The cab-rank rule was not designed to define acceptable remuneration; it exists to ensure that anyone can access a barrister no matter how unpalatable the case. It is right and proper that we acted to protect a principle that is central to the interests of clients and the proper administration of justice.”

As I understand it, the BSB has permitted barristers to turn down legal aid very high cost cases on the grounds available to barristers in other cases. Broadly these include where the barrister deems their fee improper having regard to the complexity, difficulty and length of the case, and his/her own experience and seniority, and the expenses s/he will incur. On one level this is perfectly reasonable, a business determines its own appetite for income (however meagre it may be under legal aid) and, just as an employee should be free or not free to work, so a business should not be free to take on cases it deems beneath their experience or income requirements. Note though it is a business decision. The cab rank rule is a noble principle trumped by business considerations. Pragmatic it may be, but noble it ain’t.

Some will argue that the exceptions are necessary to prevent the government forcing unprofitable cases on the Bar. A reasonable point too, but as soon as some barristers accept cases at the new rates then this argument starts to look weak. Those who have turned down cases under cab rank exceptions (if it ever comes to that) will have their judgments called into question. If two barristers of equal experience are presented with the same types of case and one accepts and the other refuses on economic grounds then the only distinguishing feature is the efficiency of their business model (their underlying costs). And the BSBs justification for further eroding the cab rank rule has a rather large hole in it. We will see soon enough whether this is true or not and thus whether the BSB relaxing of the rules was hasty. The reference to inadvertently breaching the Cab Rank Rule may turn out to be deeply ironic. Legal aid is almost certainly the main area where the Cab Rank Rule does real work. Exceptions here are the end of it as a rule, and the signalling of it as an aspiration.

The final argument that many will want to make is that the legal aid cuts will damage quality. That is very likely to be true, but relaxing the cab rank rule does not really seem to me a legitimate way of dealing with that if – as I suspect- barristers will take these cases at reduced costs even though they are not required to. What the Cab Rank Rule relaxation does do is remove one barrier to those organising a boycott of VHCCs and further strengthen the ability of barristers to put their business needs before the nominally fundamental principle of Cab Rank. It is possible to see public interest benefits in both positions, but whether those interests are genuinely and independently verified, and the fact that they align so closely with the Bar’s political position give rise to significant and legitimate concerns.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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3 Responses to Cab Rank Rule: A Badge of Convenience?

  1. probertsonqc says:

    I am Vice Chair of the Bar Standards Board. Let’s be clear about the facts here: it has long since been the position that for privately funded cases and for most legal aid cases the responsibility lies with the individual barrister to exercise their own (reasonable) judgement whether or not the fee offered is reasonable. The cab rank rule is there to ensure people have access to justice if they can pay a reasonable fee, not to substitute for the role of Government in making provision for those who cannot. Barristers have to be able to earn their living by the exercise of their skills in a competitive market if there is to remain a strong independent legal profession able to provide the public with representation when it is needed. Many of them also contribute their time in pro bono work in the many organisations who are trying to cope with helping the increasing numbers who can neither afford representation nor qualify for legal aid. It’s not the function of the cab rank rule to fix prices or to plug the gap in legal aid funding. Prices are for the market and the question of what priority to accord the legal aid budget is a matter for democratic debate and political accountability.
    To understand why the BSB is entirely right to say it is moving to fix an anomaly you have to be prepared to wrap your head around some detail. There was a historic provision in the code, dating back to before the BSB existed, that “deemed” legal aid fees reasonable unless the Bar Council “undeemed” them. The Bar Council exercised that power many years ago in respect of graduated fees, again before the BSB came into existence. This whole deeming/undeeming mechanism was part of the old regime whereby the Bar Council was both regulator and trade union, negotiating legal aid fees with the LSC (a body that no longer even exists). It had no place in a regime that rigorously separates regulatory and trade union functions. The BSB had already, long since, decided as a matter of policy that it ought to be no part of its role as a regulator to “deem” legal aid fees as reasonable or unreasonable and the new Handbook, which had already been approved by the LSB months ago and comes into force in January 2014, sweeps all of that away.
    Against that background, the MoJ then introduced a statutory instrument which would have had the effect of making fees in Very High Cost Cases “prescribed by regulation” thereby bringing them within the scope of this “deeming” provision for the first time, for a space of just over a month before the provision was abolished. You would have had the ridiculous situation that a barrister would have been a) free to make their own reasonable judgment as to whether a fee was reasonable in a graduated fee case or a privately fiunded case but not in a VHCC case (which by its nature involves a long term commitment); b) free to decline a VHCC case where the fee was reasonably judged to be unreasonable if the case was offered before the beginning of December 2013 or after 6 Janiuary 2014 but not in between those dates. That kind of unjustifiable anomaly tends to undermine a rule. Precsisely because the BSB does believe in the value of the cab rank rule and the importance of upholding it we moved to remove that anomaly.
    It will be for barristers to arrive at their own reasonable, individual judgments as to whether the fee offered is reasonable for the work involved in new VHCC cases, as in other cases.
    Individual circumstances vary and what for one may be reasonably regarded as inadequate may satisfy another. The cab rank rule permits barristers to make those judgments but requires them to subordinate the needs of their business to the needs of access to justice where taking a case may conflict them out of other, potentially more lucrative work (in contrast to the position of solicitors).

    • Richard Moorhead says:

      Many thanks for your comment. I agree with a fair amount of this and in particular your point on the interegnum between December and January; the BSB were in a cleft stick. I don’t think you are all the way there on VHCCs, because these are cases where the full might of the state bears down on individuals in way which is less true of many (not all) other cases. It seems to me possible that these cases more likely to be the ones where a cab rank rule is likely to be needed. It will also be these cases, because of their uniqueness, where it will be easiest for barristers to say, sorry this economic coat does not fit, when they have other motivations. (I actually think it is pretty unlikely, for the kinds of reason Flood and Hvidd give, for barristers not to want to take such cases, and where they do not want to I think as long as someone else of competence will the client may be better served).

      However I disagree more strongly when you say this:

      The cab rank rule permits barristers to make those judgments but requires them to subordinate the needs of their business to the needs of access to justice where taking a case may conflict them out of other, potentially more lucrative work (in contrast to the position of solicitors).

      The rule may require it but the discretion they have permits the opposite and, barring any errant daftness by the barrister in what they say when turning a case down, there is not much anyone can do about it. If one takes the view that, “as in other cases. Individual circumstances vary and what for one may be reasonably regarded as inadequate may satisfy another” then one takes the view that discretion is king. Some barristers will be restrained by the cab rank rule and some will not. I don’t have a problem with the idea that the Bar should be able to turn down cases (save in extraordinary cases, which is one of the remaining reasons why I would be willing to support a modified cab rank rule); but I do have a problem if the Bar then seeks to parade its principle with the kind of hubris it has done, when the principle is de facto if not de jure discretionary and contingent. A barrister can decide whether they want to take clients they don’t really want to or not and justify it on their diary; or the costs; or their level of experience; or… [you get the picture] and the client/solicitor would generally have to be slightly crazy to try and do anything about it other than find someone who wants to do the case.

      When I criticise the BSB’s handling of the CRR I am really talking about the broad and rather excessive claims made for the rules reach and purpose in the light of the longstanding policy of erosion. Its general policy, of which you rightly point out the VHCC issue is really only an extension, is simply a continuation of the Bar Council’s view of widening exceptions when business pressures require them or when it may be convenient (I refer to the the standard terms row). It is not unreasonable to allow barristers to do business on the terms that they and their clients agree; but it is unreasonable to claim that the cab rank is much of a rule or that it is a signal of the Bar’s great virtue. It’s professional vanity which stops the profession saying so loud and clear, and one might wonder how vanity is in the public interest, but I also think it disguises a more fundamental question – how would one design a cab rank rule which is genuinely fit for the rather alarming world in which the profession finds itself.

  2. You criticise the cab rank rule because it contains many exceptions and is very difficult to enforce. With respect, that misses the point. Most of the ethical standards adopted by the Bar could be criticised the same way. Enforcement is arguably the worst way of enforcing ethical standards, which are by their nature matters of judgment. The best method of enforcement is by creating a culture in the profession by which barristers choose to comply whether or not any breach could be discovered or prosecuted. My experience is, in the main, the bar has succeeded in this aim.

    Part of the reason is that there are a limited number of barristers that practice in any legal or geographical area: a barrister can quickly gain a reputation for sailing close to the wind and will not be trusted in negotiations or by judges, to the detriment of their clients and their advancement in the profession. Part of the reason is collegiate: the eccentric requirement that barristers must join an Inn of Court and eat a certain number of dinners helps creates a unity of perspective that the profession forms an important part of our system of justice. Barristers are, in the main, genuinely passionate about ensuring justice is both done and seen to be done.

    One thing that surprised me when I joined the profession, some 20 years ago, is how often barristers make ethical decisions in the course of their practice. It is no exaggeration to say that, particularly for those with a mainly court-based practice, a barrister will make several ethical decisions a day. In respect of most of these, the barrister could not be found out or suffer any penalty if he broke the ethical rule. He or she nevertheless complies. It is simply second nature to do so and the issue of sanction is irrelevant.

    Reverting to the Cab Rank Rule, the criticisms that you level are, on the above analysis, misfounded. The issue is not whether the rule can be enforced easily but whether it should exist at all. It is true that the rule was of more use when Legal Aid was deemed to be a reasonable rate. On a few occasions when I started in practice, my solicitors succeeded in instructing a QC who would normally have charged much more that Legal Aid rates by using the rule as a nudge. The problem is that Legal Aid rates can no longer be described as a reasonable. A further problem is that there are now few areas of law in which Legal Aid remains available.

    This does not affect, however, the fundamental question as to whether the Cab Rank Rule is a good one. I think it is. It reminds barristers that they everyone is entitled to representation, no matter how abhorrent their views or actions. On a more esoteric level, it reminds them that the liberty of the subject depends upon a free and independent bar. Most barristers will comply with the rule, for the reasons given above, despite the ease with which one might unethically avoid it. It is a matter of enforcing a good habit. And for that reason, the rule is worth retaining.

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