Barristers: Cab-rank rule scarcely enforced
It seems “relatively straightforward” for barristers to avoid the cab-rank rule by relying on exemptions, the Legal Services Board (LSB) has said.
Those who defended the rule as “a significant underpinning of access to justice” might be overstating the case and providing “a degree of false assurance to the public”, it added.
The LSB said the cab-rank rule had come under renewed scrutiny earlier this year after barristers and other lawyers pledged in a Declaration of Conscience not to prosecute climate protestors or act on fossil fuel projects.
Some of the barristers involved reported themselves to the Bar Standards Board (BSB), which decided in May not to take action against them, at least until they actually refused instructions.
In a discussion paper for today’s board meeting, the LSB said the exemptions to the rule were “in the gift of the barrister”, and it may often “be difficult, if not impossible, for a client who has been declined on the basis of an exemption to the cab-rank rule to test the application of that exemption”.
A barrister’s diary commitments, the basis of one of the main exemptions, were “not something that a potential client would normally have access to” nor would it always open to clients to test a rejection on the basis of ‘reasonable’ fees.
“Anecdotal evidence would suggest that it is a relatively straightforward matter for a barrister who does not wish to represent a particular client for any particular reason to avoid doing so by invoking one or more of the exemptions.
“It is perhaps not surprising that the cab-rank rule has rarely, if ever, been enforced.”
The LSB said vulnerable clients were not “empowered” under the rule, for example because they lacked ability to raise adequate funds and had little insight or understanding of the barriers in the rule.
“The privileged client may be less likely to fall foul of the exemptions, and the barrister may be more able or inclined to accept the matter.
“In this context then, access to justice could be considered more available to those in a privileged position.”
While recent commentary from the Bar Council and the BSB reasserted the “centrality” of the cab-rank rule to access to justice and the rule of law, there were also “those who query the cab-rank rule’s relevance”, and whose views were more similar to the findings of the 2013 report commissioned by the LSB that recommended its abolition.
“Indeed, the positioning by some of the cab-rank rule as a significant underpinning of access to justice may well overstate the case to such an extent as to provide a degree of false assurance to the public.”
The LSB said the issues arising from the cab-rank rule ranged from duplication (the presence of rules already covering the same or similar matters), efficacy (the lack of enforcement or complaints in connection to the rule), lack of transparency (exemptions for the barrister rather than client focus), access to justice and independence (clients should have access to representation and barristers should not be criticised for acting).
These issues “cut across” LSB workstreams, whether it was professional ethics or discipline and enforcement, and the LSB would keep them in mind “as part of our ongoing projects”.
I entirely respect and indeed empathise with colleagues who for ethical, personal or ideological reasons don’t want to take some of these cases. Unfortunately I am also concerned about the equitable access to legal representation, these increasingly common issues present. One idea which has crossed my mind all being, fleetingly, a few times over the years, is to have a rota system agreed. So that if you are refused representation for your brief a certain number of times and it can be reasonably argued a case exists, you can go to a panel that allocate the case to a “Mandatory Brief Team” which could be a voluntary system where members who sign up are required to take any case the panel puts to them at a standardized rate for services rendered. This would perhaps assuage individual consciences as although one would sometimes be completing work one had an ethical issue with, at other times you would be ensuring someone’s right to representation and could temper that in the knowledge, that these kinds of compromises are needed in order to keep a justice equitable. Maybe it could be something mandatory for all members to do within the first 5 years. But alas a perfect answer or at least widely agreeable answer, likely does not exist. Such is the imperfect nature of our existences.