Posted on | January 27, 2013 | 17 Comments
There’s been a bit of drought around here lately I know. And the forecast is for that to continue I’m afraid. But I do have time for a quick Sunday night post.
Last week the Legal Services Board published research that it had commissioned on the Cab Rank Rule, prepared by Professors John Flood and Morton Hviid. In a nutshell, the professors are not keen on the Cab Rank Rule – frankly they can’t see the point, everyone ignores it anyway, and it isn’t even a proper rule. So : Ner! (picture the professorial tongues stuck out). I paraphrase slightly of course.
I was interested to read what the conclusions of the report were because I engaged in a twitter exchange with Prof Flood about the Cab Rank Rule some months ago, when as I recall he expressed some doubt as to the usefulness of the rule. And as it turns out the blog post I wrote around the time (Bat the Rat) is referenced in the footnotes to the report. In fact I’m in good company, as appearing in the footnotes are the names of some of the better known blogging bar @adamwagner1 (Adam Wagner), @ffgqc (Frances Fitzgibbon QC), @John_Cooper_QC (John Cooper QC) and @felicitygerry (Felicity Gerry QC).
I’m not going to be foolish enough to try to tackle the economic theory set out in the report. I didn’t understand it. It’s not my field – why should I? But I did understand some other aspects of it – the bits about how the cab rank rule operates in practice. And I have a few thoughts to throw in (admit it, you’d be disappointed if I didn’t).
It’s important I think when considering this report to consider it’s limitations, which are frankly acknowledged at the outset and in a “methodological note”. This is in essence a literature review. A literature review of scant literature. With a smattering of interviews thrown in for good measure. From a smattering of unidentified sources and without any information being provided about how the unidentified sources were selected, what they were asked or indeed what they said – other than selective quotes that illustrate a particular point that the authors seek to make. So pretty limited. (And what’s more – who the hell were those clerks they were talking to? Not mine, that’s for sure. But if they were I would beat them over the head with a copy of the code of conduct until they submitted. One of the important purposes of the code actually, to assist junior counsel in managing the barrister : clerk power dynamic).
There are some well made points in this research. The authors ask why there are no statistics held by the Bar Council showing the frequency of breach of the cab rank rule, why on paper it appears as if the rule is never breached at all. Perfectly legitimate questions and one which I think the Bar Council / BSB ought to answer. What monitoring is being done? How are breaches being enforced? Is it really right that nobody is complaining about this kind of breach or are complaints being recorded under some other section of the code? i.e. is it a data issue?
I think my discomfort at this report is that having acknowledged the methodological limitations, it does not seem to have had any tempering effect upon either the tone or the conclusions of it. It reads as rather anti-bar, and yet many of the criticisms of the bar are based upon assumption or anecdote, or are extrapolated from the code rather than the reality of practice.
So, for example: the report says this : “There are 8 reasons for withdrawal [from a case]…While most appear reasonable grounds on their face, others seem to be the result of mismanagement in chambers, e.g. competence, too little time, blacklisted solicitors and direct access clients.”
I think this is a little unfair. In fact the code provides that:
“608. A barrister must cease to act and if he is a self-employed barrister must return any instructions: (a) if continuing to act would cause him to be professionally embarrassed within the meaning of paragraph 603”
Paragraph 603 itself deals with reasons for not accepting instructions in the first place because of professional embarrassment, and defines professional embarrassment in that context, but of course paragraph 608 is quite explicit in applying all of those bases for professional embarrassment to the question of withdrawal after instructions have been accepted. What I think that the reports’ remark concerning chambers mismanagement misses is that the rule encompasses unforeseen change of circumstance after acceptance of instruction. Of course the rule potentially gives an “out” in cases where the clerks have failed to pick up blacklisting before the brief was accepted (although I find it hard to believe that members of the bar are regularly withdrawing citing professional embarrassment once a brief has been taken on this basis), but it’s really not that infrequent that a case suddenly takes an unexpected turn and becomes way more complex than had been foreseen at the outset. And the same applies with knobs on in direct access cases – where a case that was suitable for direct access becomes wholly unsuitable. So whilst potentially the code could act as cover for chambers mismanagement there isn’t actually any evidence that it is functioning that way, nor is it fair to imply that there is no legitimate reason for these sections of 603 to apply to withdrawal.
The authors remark on the fact that the cab rank rule appears to permit QCs to insist on double manning of cases. I’m not so sure that in practice this is a big deal; from where I’m sitting the commercial reality is that QCs are increasingly having to accept taking on work without a junior. What’s more I don’t think the analysis gives credit for the particular expertise that a QC brings to a case, and one of their core functions is to advise on the proper running of the case, to coordinate the legal team : you hire a QC to tell you what the case needs! And whilst of course in the past it could be said that the title QC was not one conferred for quality as much as influence, it is now an award made only after a rigorous and transparent process.
In relation to over-running or overbooked cases, it is said that the risk of non-apearance is borne solely by the client. Again, that is correct on one level – but in practice if heaven and earth aren’t moved by clerks to find competent and suitable counsel to take over the brief when something like this happens well, frankly – the proverbial will hit the fan. This illustrates the point that the lack of data at the BSB may be evidence that in most cases clients are protected by the huge efforts made by the bar through their clerks to ensure that clients do not go unrepresented. The system of managing diary problems when cases run long or go part heard or where counsel breaks a leg are quite amazingly efficient – as I found out when I broke my ankle 48 hours before a NAI fact finding hearing. Clerks can work miracles (and more often they are doing so in response to ridiculously late instructions by solicitors rather than because of double booking). By and large the client is protected. And the reason all this effort goes into this smooth clerking operation is because there is an economic incentive to cover all cases chambers is requested to cover – solicitors repeat instruct chambers whose clerks can work miracles with diaries, who they can rely on to find them cover, even if it is not always their first choice of counsel.
One strand of the report focuses on the significance of high profile clients – nasty nasty rapists or mass murderers or terrorists, that kind of thing. I just don’t buy this as being as significant a factor as the authors suggest (and I won’t rehearse why here as I covered it in my earlier blog post). Maybe some members of the bar are attracted to unattractive clients because it brings them kudos but I don’t really think Dinah Rose QC represented Assange because of his google rankings. The types of counsel representing notorious clients are doing that day in day out, I shouldn’t think most of them are short of work. The report hypothesises that if the cab rank rule didn’t exist there might still be some sense of collective professional responsibility amongst the legal profession that would result in a loss of reputation for those members of the bar who never dealt with the unattractive clients. I think that rather misses the point – the significance that the profession attaches to the universal right of representation is underpinned by the rule itself – it is taught to the bar from the very outset, fundamental to how we think of ourselves. Without the rule perhaps the sense of collective responsibility would wither. And what then? Alright for the unattractive but notorious clients, but what about the unattractive and mundane?
The professors complain that the cab rank rule “only requires that the barrister has to accept the brief, it says very little about the level of effort the barrister will put in once the brief has been accepted. Any problem of ensuring adequate effort may be solved by the second consequence identified above, namely that poor current effort may be punished by future potential clients“.
This is very odd. The authors appear to criticise the code for not requiring sufficient effort, without reference to the requirement to fearlessly defend and to act in the best interests of the client, which are core principles enshrined in it. Of course the cab rank rule doesn’t deal with it – it’s covered elsewhere.
The authors of the report seem to be under the impression that the cab rank rule requires the client to accept the next cab in line, it seems to envisage that the taxi rank analogy operates quite literally, with a strict rotation of barristers, regardless of specific request or of the need to match the attributes of a particular barrister to the needs of the case and the size of the purse. In reality what takes place is far more sophisticated and varied than a simple analogy can encompass – sometimes an enquiry is for the availability of a named counsel, other times a request is for barrister A, B or C depending on who is available, and yet other times it is a request for guidance on who might be most suitable for a case with X characteristics. Even with direct access clients the principle is the same – enquiries are sometimes for a named barrister, but not always. The crucial point is that the cab rank rule binds the barrister but not the solicitor / client. The solicitor can ask for who they like, and if that barrister is available and there is no professional embarrassment – the rule bites.
Likewise, I struggle to recognise the sketch of the fee negotiation process that is set out in the report, the suggestion being that “if we assume that the cab rank rule is fully enforced and enforceable…the solicitor can make a take it or leave it offer which has to be accepted unless an external body decides that the level of fee is inadequate“. Well, not really. It simply doesn’t work that way. The solicitor can’t compel counsel to take a brief for a fee of the solicitor’s choosing – and neither does the code require that, when properly read and interpreted.
It is noted that the cab rank rule “may strengthen the bargaining power of barristers by freeing them from implicit or informal ties with one powerful buyer of his or her services“. Of course a more positive way of expressing this would have been to say that the cab rank rule has an important function in protecting the independence of the bar from e.g. big business.
On family law it is suggested that “particular barristers act exclusively for Local Authorities in care proceedings while other act only for parents or children. Again these distinctions are informal and not publicized in ways that would incur the BSB’s wrath.”
These are pretty strong allegations and there is not a shred of evidence cited in support of them. There are individual barristers and indeed chambers who are known for Local Authority work, but I can’t think of a single chambers or individual barrister who NEVER does parent work (and the same proposition applies in relation to parent or child work) – OR anyone who would refuse to take a Local Authority or parent brief if asked. This is important – there seems to be an elision between a tendency to take on a particular type of work or client, and breach of the rule when of course there is some distance between the two. I tend to do more parent work because parent solicitors are happy with my work and reinstruct me, but I still do Local Authority and children work. Even if there are counsel who in practice are always briefed for a local authority this is not evidence of a breach – quite possibly they are either booked up or just not requested by parent solicitors, who prefer to instruct someone with a practice that involves day in day out handling of parent cases. Not. A. Breach.
There is a suggestion in the report that the bar should adopt a provision similar to that operated by the New York State Bar, essentially saying that barristers cannot refuse representation on grounds of race, creed, colour, age… etc. It is said in the report that such a provision is not found in the code. This is just WRONG. Paragraph 305.1 of the code provides that :
“A barrister must not, in his professional practice, discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief or pregnancy and maternity.”
Flood and Hviid suggest that whilst American scholars are “concerned about access to justice, zealous advocacy, and due process for the English these issues are almost pushed into the background“. They go on to compare so called English pragmatism with the “don’t ask don’t tell” policy with respect to gays in the military. This seems to me to be a rather politicised tone for a piece of research. And one man’s insinuated moral abdication is another woman’s objectivity. The purpose of the approach taken in our legal tradition is to protect the client, in order to further those objectives that the American scholars are apparently so much more in tune with.
One of the criticisms of the cab rank rule as it is currently expressed, is that the number of exceptions that have accrued make it complex and “swiss cheese” like – difficult to define or draw limits around. This is a fair point, as is the point that the cab rank rule is more aptly described as a principle rather than a rule. But – what is the upshot of that? For me it raises a question about whether the rule could be more elegantly expressed, about whether we should give some thought to moving towards the “outcomes based regulation” model adopted by the solicitors profession – but does a smart technical point about the definition of rule versus principle lead inexorably to the suggestion we should ditch the rule as a core principle? Not really. It’s fundamentally sound. The code is commonly referred back to, anxiously considered by counsel in a difficult spot – to ensure that if we continue to act we do so appropriately, and if we withdraw we do likewise. I have spent many long minutes on the phone to the Bar Council ethical enquiries line working through the code, looking at this section and that, in order to ensure that a proper and an ethical decision is reached. The authors of the report take the view that the Code is a disembodied religious text that nobody believes in but it’s a vital tool that guides our conduct. And they would know that if they had researched it.
I am sure that the cab rank rule is breached. I don’t think that it is as often as the authors of this report speculate – and lets be absolutely clear here, it is no more than speculation, apart from isolated examples given of press clippings about christian barristers (and I note with slightly raised eyebrow that the authors of the report “guess” that notorious christian and christian rights barrister Paul Diamond would breach the rule if asked to act against his views). But equally I agree that the paucity of data is probably a reflection of poor monitoring or data handling than it is of a complete absence of a problem. I agree that this is something that warrants closer scrutiny and frankly I think the Bar Council or BSB should pick up that baton.
So, back to the barrister bloggers (and this is where my other eyebrow rose up.) Blogging and tweeting by members of the bar it is said is a form of “advertising of specialties and perspectives on the law, whether implicit or explicit, which could potentially fall afoul of the cab rank rule yet increase information for consumers in the market.” I just DON’T get this. Chambers websites with barrister profiles are no different – you set out your area of expertise and your particular skillset, what you are best known and the characteristics you are most often instructed for. Unless you are indicating that you will not take on a particular type of client it’s not a breach of the cab rank rule – and the cab rank rule does not constrain us from providing this valuable information for potential clients. It does not fetter informed choice.
The way I see it the cab rank rule is a constraint on the bar. It is imperfect but not pointless. In some ways it fetters our ability to compete against solicitors, and I thought that the swiftly discounted idea raised by the authors of this report that the cab rank rule could be applied to all branches of the legal profession was rather interesting. One example of how the different codes and systems for professional conduct produces different results is in the increasing willingness of solicitors to double court. In fact this now extends to quadruple courting, something which is unheard of at the bar. To over simplify: Solicitors are in trouble (with partners) if they don’t double court. Barristers may be in trouble if they do (from judges and clients who both seem to have a different expectation of the bar than solicitors, from the BSB when the inadequate professional services complaint comes in, and increasingly through wasted costs orders). The cab rank rule makes us careful how we manage our diaries and it produces a different culture within and expectations of us. Not a criticism of solicitors, but a marker of how the law of unintended consequences may apply to a hasty ditching of a rule like this (sorry – principle).
The report concludes that the cab rank rule is side-lined and ignored, regularly breached, of no consequence. This is not evidence based opinion. It is opinion.
Emotive article of faith? For sure (On both sides of the debate it would seem).
Rationally justifiable professional obligation? I think so. And I don’t see much actual evidence against that proposition just yet, although I can see the need to start a process of gathering further evidence. This blog post is just anecdotal evidence, and the opinion of one person. We need better.
But for what it’s worth I say this: The cab rank rule may date from a time (now gone) when, but for the rule, it would have been ok to say you didn’t much fancy representing a gay or a heretic – but it still enables the bar to maintain a distance from the client and the case which is to the ultimate advantage of the client. We are relieved of responsibility from selecting our clients in order that we can take full responsibility for the fearless defence of them.
Footnote. It’s late. I’m tired. This began as a quick rant to cleanse my palate between cases (a sort of legal sorbet) and turned into a 7 course dinner. Excuse errors and slightly disjointed nature of post. Zzzzzz…