Thursday, January 31, 2013

The Clerks' Views of the Cab Rank Rule

As everyone knows the power behind the throne is the barrister's clerk (like behind every man is a good woman). Billy, above, from Silk may have been a mite too Machiavellian, but he knew how to work his mobile.

The controversy over the cab rank rule grows. Added into the mix was the Bar's move to impose new standard contractual terms on solicitors, which say, that unless they are accepted, the cab rank rule will not apply. This tends to reinforce my view that the cab rank rule is primarily about money rather than nasty people.

There have been two blog posts from clerks on the cab rank rule. Notabarrister titles his post, "The Cab Rank Rule--What is it good for? (Absolutely nothing?)" He explains how and why a clerk deals with the rule and what it means to him. As he says, no clerk wants to turn away work, but there are times. Notabarrister gives a good example of this:
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.
And he discusses the financial aspects of the rule and the deeming and non-deeming of legal aid fees. (See the report for a discussion of these arcane terms.) Notabarrister deals nicely with the exceptions to the rule. His final point sums it up: overhaul the rule and apply it to all lawyers.

The second post comes from Clerkingwell, "Cab Rank -- whose rule is it anyway?" Clerkingwell too identifies the financial aspect as crucial and that the Bar's new standard terms can mean the rule would apply to a shrinking number of cases. His analysis shows a different take on the rule and he concludes it has never been breached. How so?

Looking from a different angle, let’s consider the rigour with which the cab rank rule is observed. The report rightly highlights the lack of any relevant data on this.  I don’t believe any is needed, as I am convinced that it has never, ever been breached.  This may sound surprising, but less so if you look in detail at the rule itself, particulary the broad and hugely subjective exceptions outlined in paragraphs 603-606 of the Code of Conduct.  It’s hard to avoid comparison with the well-know quote from the Life of Brian : “what have the Romans ever done for us ?”
The discretion afforded to any barrister in deciding whether to accept an instruction is so wide as to render the practical application of rule meaningless.  How can you possibly define a breach, much less prove one ? Issues such as availability, expertise and reasonable fees are very much in the eye of the beholder.
 It is good to hear some measured and analytical voices in the debate which rumbles on........


Tuesday, January 29, 2013

The Cab Rank Rule Finally Explained.....

(Thanks to New Yorker)

See, it's all quite simple really.....


Criminal Bar Association Likes Taxis....

Continuing the cab rank rule compendium, the Criminal Bar Association chairman, Michael Turner QC,* posted some comments today on our report. I'm sure there is merit in them somewhere. But the response is rather emotional.

In a recent report HERE the LSB conclude the following on the Cab Rank Rule

“We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalized legal services market. By all means the Bar can espouse it as a laudable principle, but it should not pretend that the rule is significant or efficacious.”

How dare they? This is a further demonstration that the LSB is a politically motivated body whose mission is the wholesale destruction of the publically funded criminal Bar.
They then quote our conclusion extensively and close their argument thus

Hundreds of years before anyone even dreamed of outlawing discrimination, the independent  Bar along with the medical profession had enshrined a rule that ensured that every person in need of either legal representation, or medical services could be guaranteed access to the very best. Over hundreds of years this rule has ensured that those accused (rightly or wrongly) of heinous crime have been properly represented. Without the rule many would not have been. The most recent example of why that rule is necessary comes from a country which does not have it, India, where the men accused of the rape and murder of a young girl on a bus have struggled to get representation 

The LSB’s analysis of why they say the Cab Rank rule should be replaced is based on such a fundamental misunderstanding that it makes one shudder to think that the regulation of one of the greatest of the liberal professions has been in placed in the hands of those so startlingly ignorant. They argue that the rule is breached on a daily basis because the specialism of chambers means that a Chancery practitioner will not accept a criminal case. This logic beggars belief. Part and parcel of the cab rank rule, is the rule that no barrister will accept a case outside his knowledge and experience. The Chancery practitioner will quite properly re-direct a criminal brief in the direction of those who specialise in criminal law, thereby servicing the client and breaching nothing.

I could write a great deal more on this crassly ignorant analysis of the Cab Rank rule, but there is no need to spell it out. Read it and weep.
Note * According to Michael Turner QC's website--and he's not shy--he is a brilliant, intellectual legal brain with a lot of gravitas. And occasionally he loses the plot.


Friday, January 25, 2013

Cab Rank Rule Redux....

Since the Legal Services Board published our report on the Cab Rank Rule on 22 January we've had many comments coming in on the discussion boards. They are not all negative, though many are.

I wanted to give some of the flavour of what is coming our way. We expected it of course. The first article to appear was in the Law Society Gazette (the solicitors' journal not barristers') which has garnered many comments. I have tried replying to a few. Catherine Baksi gave a good summary of the papers. Here are some of the comments:

The latest idiocy

The fact that a fundamental principle is not understood by the market place is no reason for abolishing it.

This is a sensible step

This is a sensible step forward. Most other countries do not have this silly rule. Indeed, some other countries view this rule as entirely unethical. This will level the playing field and allow people to receive better representation, and allow lawyers to openly restrict themselves to cases they actually take.
There is no point in having a rule that is not enforced, unenforceable and not generally supported merely because a minority does.

And what is to happen the

And what is to happen the first time a Defendant accused of some really nasty offence - Huntley, or the man who killed Millie Dowler - cannot find representation because every lawyer approached reckons it will cost more work than it is worth?

The defendants accused of

The defendants accused of really nasty offences that are media worthy will not have a problem getting representation because that is exactly the kind of high-level exposure that criminal barristers want. Such exposure is not only fun to have, but also increases business.

Working around the Cab Rank

I have never had a barrister outright refuse a case, and as a matter of principle I would only ever send instructions/brief to a barrister who I would expect to take the case unless given very specific instructions by my client as to who he/she/it wishes to use.
I have, however, had an experience where the fee demanded by my client's chosen barrister was deliberately priced so high that my client couldn't possibly afford it. The clerk was absolutely open about it - saying that this eminent barrister regularly advised the other party to the dispute and, while on this occasion there was as yet no conflict, he would need a substantial fee to justify subsequently having to turn away the other work that he expected to be offered.
In other words, not quite "No thanks, don't fancy your client.", but as near as dammit.

Modern academia

Yes, this is what we expect from the half-educated half-wits who become professors nowadays. "The rule is imperfect, so it must obviously be abolished."
Might as well abandon the whole of criminal law, then, since that doesn't punish let alone convict a significant proportion of perpetrators.
What might happen if the rule was abolished altogether has been recently illustrated in India, where the Bar has rushed to announce that it will have nothing to do with defending those beyond-the-pale men charged with the rape and murder of the student on the bus. After all, why imperil your career or endanger your family for fear of reprisals against your representation of such obviously unworthy objects of legal attention?
Since then we had an article by the "Chief Officers' Network" which concluded,

So, there it is, then. More jobs for the boys: a consultation that means that there will be more time and money spent.
So let's save both: listen very carefully.
And next time you want a proper opinion, ask a lawyer. Hell, ask me: I'll do it in a fraction of the time, for a fraction of the cost.
One of the best write ups came from Dan Bindman at Legal Futures. No comments there but it had been tweeted extensively.

We've thrown the stone in the pond, let's see where the ripples end up. The Bar has begun but as the Law Gazette said, 

Chair of the Bar Standards Board Baroness Ruth Deech said: ‘We will analyse the report with interest but we are clear that removing this fundamental principle would send out a dangerous message.
‘The cab rank rule protects barristers who take unpopular causes and reassures the public that they are entitled to representation even if their case is controversial in nature.
‘The rule has served the public and the standing of British law well for centuries we have no evidence that it does any harm.’


Tuesday, January 22, 2013

Do We Need a Cab Rank Rule for Barristers?
Thanks to loupiote

I've been working in India recently on the Globalization, Lawyers and Emerging Economies project (GLEE). So I got used to travelling around in autorickshaws--cheap, cheeful and extremely plentiful. 

With this dubious intro I change the topic around to the Bar's cab rank rule which essentially says barristers shouldn't refuse clients. I'm not sure, however, if barristers are cheap, cheerful and extremely plentiful. In order to find out more, the Legal Services Board commissioned me and Morten Hviid of UEA to research the cab rank rule.

Our report is published today and you can download it here. The LSB is inviting comments on whether the rule should be retained, removed, or altered. Here is the LSB summary:

Cab Rank Rule Research Summary
Why this?  Why now?
In May 2012 the LSB commissioned Prof. John Flood (University of Westminster) and Prof. Morton Hvvid (University of East Anglia) to carry out a literature review analysing the impact on the market of paragraphs 601-610 of the of the Bar Standards Board’s (BSB) code, otherwise known as the ‘cab rank rule’. The LSB published The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market on 22 January 2013.
Since at least the 17th Century it has been an important principle for the Bar that everyone who might benefit from having representation should have access to a suitable barrister.  More recently this desire to ensure access to justice, of which representation is arguably a crucial element, was enshrined with the Legal Services Act 2007 (“the Act”) as one of the eight regulatory objectives.
However, while the formal cab rank rule is clearly aimed at ensuring access to justice, it might equally be argued that its requirement for each individual barrister to offer services to all, could act as a barrier to barristers looking to specialise.  As far back as 1776, when Adam Smith’s The Wealth of Nations was published, economists have been aware of the wider economic benefits specialisation can deliver for an efficient, competitive market.   Thus the cab rank rule couldpotentially both undermine its own aim to improve access to justice (by reducing opportunities for specialisation and so the provision of niche services) and also damage other regulatory objectives, such as to promote competition.
While paragraphs 601-602 of the BSB’s code sets out the core principles of the cab rank rule, paragraphs 603-607 outline a series of exemptions and exceptions to the rule, perhaps recognising that its absolute status is less relevant in 2013. The fact that so much of legal aid work, where access to justice may be thought paramount, is exempt serves only to highlight this tension between principle and rule.
In practice therefore the impact of the rule on the regulatory objectives is complex, and the LSB believed, worthy of closer analysis.
A further reason for undertaking this study now is the desire of the BSB, in the context of the Act, to move from a regulatory framework based on highly elaborated rules to one more closely aligned with the outcomes set out within the Act.  This itself raises a number of questions for the cab rank rule.  Could it be reframed as a principle?  What impact does the rule currently have?  What would happen in the absence of the rule altogether?  This research paper considers these issues and more through an analysis of the available literature, supplemented by interviews with the profession.
The findings
The report found no evidence of the rule being actively monitored or enforced by the regulator. In terms of impact, it could not be shown that it ensured representation. There was little evidence that it was understood within the market:  indeed specialisation by some Chambers arguably demonstrated that the rule was regularly breached.
That is not to say that the principle itself of representation for all was not followed in spirit by the profession, but just that is it not clear whether the desire to offer representation is driven as much or more by the professional principle or by economic calculations.  It certainly would seem that, in England and Wales at least, clients who at one time may have been considered unattractive e.g. terrorists are now, through the wider publicity benefits they might offer, perhaps somewhat more attractive than many other types of client.
In the end the report seeks to probe the future benefits of a rule, which while having significant professional benefits, is limited in its practical application?  The range of exemptions and exclusions, including those barristers offering direct public access, already limit the practical scope of the rule. Whether measured by complaints or disciplinary findings, the authors argue that there is no evidence that the rule is applied beyond a general desired professional principle.
The report concludes that, as the profession moves from a rulebook to a code of principles or outcomes, it would seem appropriate to consider whether the cab rank rule could similarly be moved to a principles basis.  Here the report noted that the New York State Bar Client Rights number 10 provides one possible model:
“You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability.”
If modernised to reflect our national perspective on protected characteristics and supplemented with the additional protections that “you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence” the report provides one basis for the retention and reform of the cab rank rule in line with the strong ethical foundations that underpin the Bar.
The LSB will be interested in hearing the views of stakeholders, both professional and consumer, on the report’s analysis and its suggestions for the way ahead.