Lights out at the rank?

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Guest post by Richard Moorhead, professor of law and professional ethics at Exeter University

Moorhead: Lawyers should take responsibility for whom they act for

A gauntlet is being tossed down to the Bar and it is on an issue that has been making the wider profession nervous for some time: the rights of evil swine to have access to justice just like you and me.

Ok. I’m kidding. Kinda sorta.

What I really mean is the rising tide of antagonism to the petro-chemical industry as client and its impact on the cab-rank rule is about to cause a big stir.

Interestingly, big law firms, not subject to the cab-rank rule, and already shaken up by the Russia question, have been worrying about something similar in their recruitment and retention strategies for some time. A bit.

The best lawyers do not want to work for the worst clients. Imagine. What is the world coming to?

What I am specifically referring to is a group of lawyers, including several prominent barristers we are told (I have not seen a list yet), pledging to

“Withhold our services in respect of: (i) supporting new fossil fuel projects; and (ii) action against climate protesters exercising their democratic right of peaceful protest.”

In other words, at the rank of cabs, some of the barristers have turned their lights off, for quite a limited range of cases but nonetheless publicly and provocatively.

For many at the Bar, it is an act of professional vandalism. Often, I have heard, with both moving and surprising feeling, belief in the rule, which should not lightly be dismissed. For others, it is a recognition of the rule as a Shibboleth, riddled with exceptions and they say (and I agree) sometimes (often?) honoured in the breach.

Shibboleth or not, the most important exception is that the cab rank only applies to those who can afford the barrister’s fees. Unless you are Boris John… you know what, never mind.

It’s not an unreasonable exception, of course, but it means the cab-rank rule acts not to guarantee the rule of law and access to a barrister of one’s choice for all, but as a guarantee for one group. It is, quite literally, one rule for the rich (legal aid lawyers, you are the honourable exception).

And, any lawyer desirous and capable of competing for an oligarch’s cash has the perfect cover for it in the cab-rank rule: ‘I am obliged to accept instructions. It is a signal of my independence and neutrality in the finest traditions of the rule of the Bar and British justice…’

Neither US lawyers nor solicitors feel so weak as to need the protection of such a convenient rule (but who wants to be like them, I hear now being muttered in the Temple). One of the things that struck me about Dinah Rose KC’s eloquent defence of her taking the Cayman Isles case was not the reliance on any rule but her reliance on the ideas and arguments of independence, neutrality and the advancement of the administration of justice served by her participation as an advocate.

I am comfortable with lawyers setting out their stall in this way and saying, ‘We represent all comers, and here are our reasons’. They can be judged on whether that is the case.

And so too it is fine with me if lawyers say ‘we decline to act for petro-chemical companies on new projects’, to use the example in this declaration. I do not think this would make much difference to the ways in which lawyers are criticised or seen.

Nor would it make the political irresponsibility of, say, a home secretary much more likely, a real problem to which the cab rank is Canute.

And, of course, none of us can have missed the Russia-SLAPPs-Londongrad related handwringing about the rights to representation of gangsters and kleptocrats (who, incidentally are not facing criminal charges in this country, when they might actually have rights of the kind talked up).

Nothing sets the rule-of-law pulse of some lawyers racing like a rich man with a dubious cause of action. What they are arguing for is the rights of the bad lads to be represented by them.

No test or legal aid applications as barriers to access to justice here. I say, if you want to take this business, take responsibility for it. Claim it as a professional and business choice and defend it: do not hide behind a partial rule.

It is against that background that I judge the declaration issued on Friday. I am not convinced that the rule of law demands they withdraw their services, as they seem to be arguing, but I do believe their rights to freedom of expression, and to conscientious objection, are stronger arguments than the cab-rank rule as it currently stands.

Lawyers should take some responsibility for who they act for and what they do for them, not least because the potential for lawyers to be complicit in wrongdoing can be substantial (look at tobacco as an example) and is masked by the superficial gleam of the cab rank’s neutrality and non-accountability.

I might feel differently if I felt the sponsors of fossil-fuel projects or the prosecutors of protestors would struggle to find alternative briefs. The costs of their search for lawyers might (occasionally) be marginally higher, and I guess, say, Shell might regret the lost opportunity to instruct Paul Powlesland just for the craic.

And many will worry that the end of the cab rank signals the end of the claim that the Bar does not identify with their clients.

This is another ship that sailed rather a long time past; the Bar identifies with clients when it suits them plenty, it just doesn’t make the papers in the same way.

But the more substantial concerns underlying this merit a different rule and a more thoughtful debate.