Robert Spicer
Barristers and the cab rank rule
The cab rank rule has been the subject of recent controversy. Most interestingly, the rule has very little to do with cabs or ranks.
In English law, the so-called cab rank rule means a barrister must take a case that is within their knowledge and expertise, provided they are free to do so, no matter how unpalatable the cause.
It is described as ‘an essential safeguard of access to justice, the public interest, and the rule of law’ by the Bar Standards Board and has been labelled by a senior lawyers as the barristers’ equivalent of the Hippocratic oath and a bedrock obligation.
The Board (the regulatory body for barristers) states that if a self employed barrister receives instructions from a professional client (basically, a solicitor) and the instructions are appropriate, taking into account their experience, seniority and area of practice, they are generally obliged to accept those instructions irrespective of the identity of the client, the nature of their case and any belief they may have as to the client’s character or cause. This rule, known as the cab rank rule, is designed to ensure that everyone can have access to legal advice. It also protects the independence of the Bar itself by underlining that barristers are not to be identified with their clients or their clients’ causes.
This immediately raises a number of questions:
· Does it apply to direct public access barristers?
· Does it include representation as well as advice?
· Does it reflect reality?
The Chair of the Bar is reported to have made the following comments:
· Some politicians who dislike legal challenges against immigration decisions have referred to an activist blob or lefty lawyers.
· It is wrong to associate lawyers with their clients or their clients’ causes. Article 18 of the UN Basic Principles on the Role of Lawyers states that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
· If barristers start to pick and choose their clients on the basis of a barrister’s opinion and beliefs, it will mean that some clients cannot get the representation of their choice and will prejudice the Bar’s reputation for independence before the courts and the public.
In March 2023 it was reported that a number of senior barristers had signed a declaration of conscience which stated, in summary, that they would refuse to prosecute eco protesters. They will also refuse to act on behalf of clients involved in oil and gas. This was heavily criticised by senior lawyers and by the press as a breach of the cab-rank rule.
The reality of the application of the cab-rank rule can be described as follows:
· Taxi drivers waiting at a cab-rank have to work on a first-come first-served basis but they do not have to take fares where passengers are undesirable or could be problematic. Barristers are not allowed this choice. How this can be described as the cab-rank rule remains a mystery.
· There is no limit to the amount of fees which barristers can charge. This means, for example, that a client can be charged very high initial fees, payable in advance, without breaching professional rules. Fees can range, for example, from £0 to £100,000 per hour. The excessive fees charged by some barristers are never challenged and are never discussed in the context of the cab rank rule. The effect of this may be to dissuade clients from instructing a specific barrister. In other words, the case can be priced out. Money, as usual, is the answer.
· If one were asked to represent a client who had expressed clearly fascist views, and because of this had no intention of representing them, one could insist on an advance payment of £100,000 without any risk of disciplinary proceedings.
· Barristers’ diaries are confidential. The availability of a barrister is entirely a matter for the barrister himself. The question of availability may avoid any obligation to accept instructions from a specific client. This is very unlikely to be a breach of professional rules.
Statements about the crucial importance of the rule and that anyone can get representation, can be seen as so much hot air, In 2013 a report by the Legal Services Board concluded that the rule was redundant. It was regularly breached or ignored and served no clear purpose.