We abolished the Cab Rank Rule by Mistake

Back in March I wrote this about the Cab Rank Rule and its exceptions suggesting the exceptions were what the Cab Rank Rule was increasingly about.  The rule was disappearing.  I discussed several rather large exceptions to the rule – legal aid, direct access and latterly:

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.

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A barristers’ clerk after getting a right to be paid inserted in a contract

A story in legalfutures seems to point to this becoming a reality.  There also seems to be some suggestion that barristers’ clerks cannot negotiate contracts where there is a right to be paid.  It’s a shame Silk has ended, I’d have enjoyed Billy saying to some dodgy solicitor: of course, you only pay us if you feel like it.  The BSB are reported to be collecting evidence on when the Cab Rank Rule is invoked, though one would not expect it to happen very often, and they don’t have (as far as I am aware) any pre-reform data to compare it against.  We’ll get a picture very much looked at through the lens of the Bar’s commercial concerns.  It would actually be quite interesting to know what proportion of work the Cab Rank Rule now actually applies to and who the clients are who benefit from that rule.  It won’t be Joe Public on legal aid or CFAs.  Oligarchs would still qualify depending on whether their solicitors were mean or not in the contract negotiations, because their fee (I’d speculate) will always be reasonable.  Anyone in the middle, it will depend on whether the barrister deems the fee reasonable.  It’s a rule who’s beauty is entirely in the holder of the rule, and who’s star – it appears – has almost entirely waned, unless the Bar Standards Board can find some way to breathe new life into it.

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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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