Law Society: cab-rank rule criticism
The Law Society and Bar Council have called a truce over the Bar’s new standard terms of business and agreed to talk through their differences – some five years after leaving the negotiating table.
It was more than a decade ago that the pair first began discussing an overhaul of the non-contractual terms of work but the talks collapsed in 2008, after which the Bar Council worked unilaterally to develop the new standard conditions. They came into force on 31 January.
The terms were criticised by the Law Society, but its suggested variations were in turn attacked by the Bar Council. The argument was in stark contrast to the City of London Law Society and Commercial Bar Association, which spent two years negotiating their own model terms.
In a joint announcement yesterday, Bar Council chairman Maura McGowan QC and Law Society president Lucy Scott-Moncrieff said: “The two branches of the legal profession must work together to ensure the terms on which we do business with each other are fair and appropriate to barristers and solicitors. That is our common goal. It is in the public interest and it is in the interest of the profession to achieve that outcome.
“We very much hope that differences which have arisen between the Bar Council and the Law Society in relation to the terms on which barristers and solicitors do business with one another can be overcome. The new contractual terms which have been designed by the Bar Council were intended to provide a flexible framework for solicitors to instruct members of the Bar and appropriate protection for barristers for work which they have done, without placing unnecessary constraints on either side.
“The Bar Council and the Law Society will be working together in the coming weeks to ensure that the contractual arrangements on which members of the profession do business address the issues which have been identified between us and to promote our common goal, which is in our clients’ and our professional interest.”
One of the areas of dispute could be the cab-rank rule. If a solicitor seeks to instruct a barrister on the new standards terms, or on the individual barrister’s own advertised terms, the cab-rank rule will apply. If they seek to instruct on any other terms, the rule will not apply.
The Law Society said last year that this will further undermine the utility of the cab-rank rule by adding to the “already long list of exceptions to it”. It also reinforced the case for a more fundamental review of the future of the cab-rank rule, it added.
Recently the Legal Services Board published research strongly critical of the rule, which provoked a strong response from the Bar Council.
There are any number of response to this saga but the most obvious is: what are representative bodies doing negotiating standard terms? Either it is anti-competitive, or it is a step necessary in the public interest, which suggests to me either it should not be done at all or it is a regulatory matter and the BSB and SRA should be doing it.