Before anyone jumps down my throat there is a question mark at the end of “absolutely nothing”. I am asking a question; does it serve any purpose or is it an ideal which is rarely really honoured.
I decided to pen this post in response to some research commissioned by the LSB – The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market. There has been an bullish response from the Criminal Bar Association and an excellent response by @Familoo aka Lucy Reed – A Trickle Not a Flood. There has also been a typically measured response from @RichardMoorhead aka erm Richard Moorhead – Cab Rank Rules or Bar Room Brawls? My input is from the view point of a clerk, someone who is entwined within the subtleties of the Cab Rank Rule on a day to day basis. I hope it provides a slightly different view.
What is the Cab Rank Rule?
It is an ancient and honourable part of being a barrister. It states that a barrister must always accept instructions no matter how despicable or vile the client is, if the client has opinions or beliefs which churn the stomach and even if the client is funded by (put your rubber gloves on) legal aid.
Seems fair enough. No matter what I think of you, of the person you are, of the nature of the case, or how your case is funded (get your rubber gloves it means legal aid again) I will represent you.
There are a few exceptions. I have highlighted the main ones below.
A barrister can refuse instructions:
- if he lacks sufficient experience or competence to handle the matter (seems about right)
- if having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do (again seems fair)
- if there is a conflict of interests between him and the client if he were to act (lots of different examples of potential conflicts are given and all are valid)
- if he isn’t going to be properly paid or isn’t going to be paid at all (except for publicly funded matters – though this no longer includes crime or family)
- if the work involved is more than a barrister would undertake in a normal year (fair enough, if it will potentially ruin your life you don’t have to do it)
- where the potential liability for professional negligence in respect of the case could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for him to accept (this is a really interesting point)
Before I go further let me explain that I am looking at this from a clerk’s point of view. Have a guess how many clients I want to turn away? Yup, you guessed correctly – none. It’s my job to find my barristers work, why on earth would I want to wangle them out of cases. Do you know how much I get paid in clerk’s fees for cases I turn away? Yup, you guessed right again – nothing. Why would I want to be paid nothing?
Now I have explained the economics of the situation it may help to look more closely at the exceptions and see if I can provide some clarity with some real world examples and where a clerk would want to invoke the mystical veto.
These days the Bar is pretty specialist. When I first started clerking most barristers were general advocates and would use these skills is a wide range of courts and cases. The esoteric nature of this work meant they could be described as jack-of-all trades. The modern junior barrister¹ is usually much more specialised and will usually practise in only one key area of law. In such an environment it is the norm to refuse instructions on the basis that you do not possess the necessary skills to perform the task.
For example I clerk a specialist family set and so if I get a call from a solicitor asking for a barrister for a criminal case I direct them to the specialist criminal set of chambers down the road. The last time any of my guvnors did any criminal work was in the last century and since then various governments have made a few changes to the law. For any of my barristers to act in criminal proceedings would be potentially negligent. Occasionally a situation arises where a junior member of the Bar has been instructed for a case which they consider to be beyond their level of experience and expertise. Again it is perfectly acceptable to refuse instructions for that barrister.
There is also a point to be made here on the source of all instructions which are governed by the Cab Rank Rule. No instructing solicitor worth his salt would instruct a specialist family barrister on a murder trial. Generally there is no need to quote the Code of Conduct 602(a) at your instructing solicitor as a means of refusing instructions as they wouldn’t want to brief counsel who wasn’t up to the task. So the first exception is both common sense and without dispute.
The second exception is a handy catch all. If you had a barrister who really didn’t want to deal with a case you can always say “sorry John, because of his diary over the coming weeks Mr Ponsonby-Smythe will struggle to properly prepare your case and feels he would be letting you and the client down were he to continue to act”. But I still don’t understand why a clerk would be using this out other than if the issue were a double booking an issue I deal with later in this post.
I am not going to bother with the conflict of interests points. They are bloody obvious and will always apply.
The issue of fees is a funny one and raises some extremely uncomfortable positions. The basic principal is sound. If you aren’t willing to pay an appropriate fee the barrister can refuse the case. There is a popular anecdote about just this position. George Carman QC didn’t like dealing with libel cases and asked his clerk to avoid them in future. The only real escape from the Cab Rank Rule available was through the level of fee so his clerk started requesting a £50,000 retainer fee for Mr Carman QC to consider dealing with the case. It didn’t work as clients were willing to pay it and Mr Carman QC and his clerk weren’t daft and took the money. This story may be a load of codswallop but I bet there is a grain of truth contained within its mythical depths. I would guess that rule 604 (b) is the one most commonly used in avoiding the Cab Rank Rule.
Much of what comes next revolves around legal aid and so you may want to don your rubber gloves for the entirety of this next section. To me this is the real crux of the matter and this is where barristers may look a little shame faced as the Cab Rank Rule loses a deal of its nobility. Those in society who most need the Cab Rank Rule to exist to ensure they have some measure of access to justice are those who cannot afford legal representation. They can in many instances receive legal aid and be funded by the state. The Cab Rank rule clearly states that you must represent clients even if they are funded by legal aid. Unless of course the case is a criminal or family case. Criminal and family graduated fees were deemed not to be a proper professional fee and so barristers undertaking such work are not compelled to accept instructions under the Cab Rank Rule.
Am I missing something here? Does this not seem completely contrary to the noble idea of the Cab Rank Rule that there should always be representation for those who need it providing you get paid for it? If you don’t want to do legally aided work then don’t do it. I have no problem with that but you shouldn’t be able to cherry pick and deal only with the cases that provide the highest revenue. Much is being made of Chris Grayling’s² indication of future cuts to legal aid and the response of the Bar has been clear; a two tier justice system and a second class service for the poor. There is already scope for that because of the way some types of legally aided cases are dealt with under the Cab Rank Rule. Clients who can afford their own representation can potentially have their pick of all appropriate barristers but legally aided clients potentially can’t³. It is worth noting that de-deeming of criminal and family cases only occurred in 2003 and 2001 respectively and this was in response to a series of funding cuts.
It doesn’t seem quite so noble any more.
The point about professional indemnity insurance is a really interesting one and it can have a huge impact. As a specialist family set we sometimes deal with high net worth clients in divorce cases. The actual value of assets can vary greatly and so having appropriate indemnity insurance in place is not straight forward. A barrister may receive a request for representation from a client with assets worth £25 million but his current indemnity limit may only be £5 million. To increase the limit may cost say £1,000. That doesn’t seem like a problem at first glance as the fee involved should easily cover that cost. The only problem is the barrister needs to increase his cover so that it lasts for 6 years after the conclusion of his involvement to allow for any negligence claim and the statute of limitations. So now the barrister is looking at paying out at least £6,000. What if the client has an initial conference and then decides he doesn’t like the barrister’s advice? You have a very unhappy barrister.
There seems to be a desire to link the Cab Rank Rule and that darkest of all clerking arts, the managing of double bookings. The two are not related and should not be thought of so. If a clerk is trying to get a barrister out of a case in order to do something else the Cab Rank Rule is irrelevant providing the switch can be justified.
To clarify paragraph 610 (b) states that a barrister cannot return instructions to another barrister without the consent of the client and 610 (c) states he cannot return a brief which he has accepted and for which a fixed date has been obtained or (except with the consent of the lay client) break any other engagement to supply legal services in the course of his practice so as to enable him to attend or fulfil an engagement (including a social or non-professional engagement) of any other kind.
This seems pretty cast iron. If you accept the instructions and a date is fixed and it clashes with your daughter’s wedding day you can’t withdraw unless the client agrees. It would be a pretty cruel client who wouldn’t release you or court who couldn’t move the date. But what of a clash with another case. It seems clear, once you accept instructions and the date has been fixed you are stuck with it no matter what.
Well not quite.
There is other guidance which deals with the situation where a clash of cases occurs. I have highlighted a couple of key sections which are the most telling.
The following guidance has been issued to assist Counsel in making that decision, but you should bear in mind that it is ultimately your responsibility to decide which case is the most important for you to attend:
i) criminal cases take precedence over civil;
ii) a part-heard case takes precedence over a new matter;
iii) a case for which a fixed date has been obtained takes precedence over a “floater”
If none of the above apply, you should take into consideration the amount of work that you have done on the case, the length of time that you have been instructed on each case, each case’s complexity and difficulty and, perhaps most importantly, which lay client will be most prejudiced by someone else taking the case over at short notice. You should of course notify your instructing solicitors immediately it becomes apparent that you might not be able to conduct the case.
It is entirely up to the barrister to decide which case to do. The real issue is whether the solicitor is happy to release the barrister from the case. The buying power of the solicitor will define how hard a clerk can push and the limits he can go to. If a solicitor is unhappy with a change and the clerk insists the solicitor will probably take all of his work elsewhere and tell everyone he knows of how he has been treated.
This brings me back to the start. Why would a clerk look for ways to turn work away, that’s not what we do. When we do need to turn work away the exceptions to the Cab Rank Rule are used but often without thought as they have become common practice. They have become so because the Bar has evolved. There are good reasons why there should be exceptions, some practical and some economic. Some parts of the exceptions however have taken over its very noble purpose so that it no longer fulfils that purpose and most specifically when it is applied to legally aided clients. As an ethical value and as an aim it cannot be faulted but in reality it needs to be overhauled if it is to fulfil its purpose.
There is however one incredibly important reason to retain it. Barristers really, really believe in it. Not all barristers but the vast majority cling to its virtue and its values. They also cling to another section of the Code of Conduct, 303 (a).
A barrister must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person.
Couple this with the aim of the Cab Rank Rule and it is a heady mix of integrity and ethical behaviour that most of the Bar fervently believes in. To remove this from the Bar is to remove what it means to be a barrister and it cannot be taken lightly. To my mind the Cab Rank Rule should be overhauled and it should be applied to the entire legal profession.
All clients should be able to seek representation from lawyers, where the lawyer is suitably qualified and experienced and representation is appropriate. Unless of course they can’t afford it. If they qualify for legal aid that will be OK. Unless there is a good commercial reason why it shouldn’t apply. Hang on I need to make a list of exceptions………oh.
¹Silks are a whole different ball game and have completely different practices to junior barristers. Some silks still offer their services as an expert advocate first and foremost, some however are very specialised.
²I know he is technically the Lord Chancellor but I cannot bring myself to refer to a non-lawyer in that way. He is the minister for legal aid and stuff like that as far as I am concerned.
³The vast majority of barristers who undertake legally aided criminal and family matters are committed to representing clients in such cases. They often do so for a fee which after travel costs, chambers expenses, tax and other outgoings is at a financial loss or for a tiny profit.