Bat the Rat

It is the height of summer fete season, or would be if the summer were not such a washout. Bat the rat, for those who do not while away summer weekends in community activities befitting of Midsomer Murders, is a game involving a length of drain pipe angled at 45degrees from horizontal, a rat fashioned from an old sock with something heavy inside, and a weapon fashioned out of wood. The aim is to bat the rat as it exits the bottom of the drainpipe.

 

But that has nothing to do with this blogpost, since the rat in question is John Flood’s Random Academic Thoughts (RATs), (or one in particular), and I’m not intending to bat anyone – it just rhymed nicely. Yes, you’ve guessed it – the eponymous hero of this blogpost is a random non-academic thought.

 

In June John posted a blog ostensibly about the BBC series Silk, but in fact using the series as a vehicle to discuss the Cab Rank Rule:

Silk…Torn to Shreds!

John said this :

 

The Bar loves the cab rank rule. For them it underpins the rule of law. Most barristers’ clerks find it irrelevant. As one said, “I haven’t thought about it for 25 years until you mentioned it.”??Does it do anything? No one seems to know. There are no data to show how it works. Does it increase availability of counsel? Maybe where there are so few specialists in a field, eg, pension specialists.??These days everyone specializes so solicitors know who will do what case. Why send a prosecution case to a chambers that only does defence work? Informally who does what is known–formally, it isn’t. But then if you use direct access to instruct a barrister the cab rank rule doesn’t apply–another exclusion.??It’s one of those things that members know but outsiders don’t. And indeed it is less to do with the unpopular client because every lawyer wants those–they bring publicity. The main concern is now to do with the size of the fee.

 

Of course, as anyone who has seen Silk will tell you, you should never believe anything a clerk tells you. Clerks may well wish the cab rank rule were irrelevant but for those of us who practice by it is as relevant as ever.

John is right, as far as I know, when he says there is little data on this. But I can offer a practitioner’s perspective on how it affects my practice, my clients and my ethical approach to work.

 

Clerks are necessarily under pressure to ensure as much work as possible remains in chambers, and this requires a certain amount of diary juggling. The cab rank rule can be a serious inconvenience for the clerks. And that is as it should be. Doubtless most of us will have to have “that” conversation with a clerk at some point in our professional lives. I have had it more than once and will do so again : No. You can’t break that booking. I am obligated to that client. No, it doesn’t matter that the other thing you want to replace it with is far more interesting / lucrative / important (delete as appropriate). This is what protects clients, particularly difficult or legally aided clients (often one and the same) against the market that would otherwise make obtaining and retaining representation by the bar a tough thing indeed.

 

Of course there are exemptions for publicly funded work – but the exemption is on remuneration grounds only. There are some who refuse to take on any legal aid cases of a particular type, most often ancillary relief which is particularly poorly remunerated, but for those of us committed to publicly funded work it is rare to rely upon the exemption in a case in which we have prior involvement, even though increasingly such work requires us to carry out large chunks of work for nil or unreasonably poor remuneration (for example a care case involving hours and hours of police audio tapes or vast amounts of transcript material, or more than the permitted two conferences in the life of the case). Although I think it sis fair to say it is now stretched towards breaking point, most of us operate on the basis that if you’ve committed to a case you do what you need to do to prep it and get it up properly – regardless of how crap the pay is. And what underpins this is the cab rank rule.

 

I act for clients who are variously difficult, unpleasant, smelly, shouty, delusional, impossible, frightening or incomprehensible (hopefully not all of those at the same time). I act for clients whose cases are complex, time consuming, distasteful, or where the evidence is stacked against them. Of course I also sometimes act for thoroughly lovely and fragrant clients whose cases are a breeze, but I’m reliably informed by my clerks that I’m often instructed for my client handling skills (yes, believe it or not I can listen as well as talk, and do a good line in empathic but firm. Sadly not everyone considers this an asset).

 

Fundamentally my job is not to judge my client but to help him or her. The judge is the one to judge and my job is to make sure that that process is not reliant on gut reaction or partial information. Courtroom impressions matter, preparation and presentation make a difference to outcomes. And sometimes a smelly client, a hysterical client, a client who can’t get to the point for the first two hours of the conference – has a good or at least arguable case. I don’t want to operate in an environment where access to justice depends on whether or not I think based on first impressions (or even experience) that my client is an asshat or a pain in the backside and I can’t be bothered. Because I’m not the judge, and sometimes my first impression (even my considered opinion) is wrong. I have all had clients who were unconvincing in conference turn out to be compelling and believable witnesses. I have all had cases we thought were hopeless succeed. And vice versa. I can think of at least one case in the last month where I succeeded on an application when I had advised the client we would almost certainly fail – such are the risks of litigation.

 

Solicitors, who have a deal of day to day contact with a client who may be impossible to work with, may need the protection of being able to sack a client with comparatively little constraint – but the bar needs no such protection in a traditional instruction. Against my argument of course is the fact that solicitors take on difficult clients and unattractive or hopeless cases without need of a cab rank rule. If they did not the bar would have no unattractive clients in the first place! But I think that there is something about the cab rank rule that enhances not just access to representation but choice of representation. A client (lay or professional) can, as long as the diary permits and there is a means of payment, secure the right advocate, with the right expertise or skill (whether that is oral argument, cross examination, negotiation or client handling). And for me that’s what fundamentally what defines the bar – specialist advocacy and the right individual for the job at hand.

 

Of course individual barristers or sets build up a reputation for expertise in work of a particular kind, and that will shape their marketing and the kinds of instructions they tend to receive. But in my field at least, most solicitors recognize that counsel who carry out some Local Authority care work, are better informed to carry out work for parents and vice versa. It is the willingness and flexibility of the bar to range across different perspectives within an area of specialism that is advantageous to lay and professional clients. A care practitioner who acts almost exclusively for Local Authorities in my view can be at a disadvantage (and of course the same applies to “parent” counsel or “children” counsel). We might develop a particular niche, but one of the strengths of the specialist bar is that it is not narrow in it’s perspective. I daresay that what I say may not apply in quite the same way in other fields – but I can only comment on my own area of practice.

 

Crucially in my area of practice, what John Flood says about the attraction of unpopular clients simply doesn’t apply because the proceedings I am involved in are private. I have to say though, that whilst the clerks at the fictitious Shoe Lane Chambers may be attracted by the idea of a celebrity client I’m not sure that such factors feature heavily in day to day practice for the majority of the bar, where most unpleasant or unattractive clients are not in the least bit newsworthy or likely to present an opportunity for counsel to bask in their media glory. You get the recognition, whether that is within the legal community or more broadly, by being involved in Court of Appeal or Supreme Court cases with interesting facts. Popular / unpopular? Meh.

 

So, for me the cab rank rule is important. And I would like to think that it is equally so for my clients, who can choose me rather than have me deign to accept them.

 

Plus of course the cab rank rule keeps us endlessly entertained at dinner parties (The old “How could you defend a rapist?” question *yawn*).

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14 thoughts on “Bat the Rat

  1. So nobody polices this rule, or even collects data to show if the “cab rank rule” is being adhered to? Clerks are more than willing to ignore it for business or personal reasons. Is this a rule or a guideline?

    • It’s a rule, policed by the Bar Standards Board. It is contained in our Code of Conduct and a breach of it is professional misconduct. I think what John Flood and I were referring to vis a vis the lack of data was that there is a lack of data or analysis about how it works in practice or what benefits / down sides it might bring. Details of disciplinary findings and sanctions are published on the Bar Standards Board website and one can search through those, so I imagine there is data as to how often the rule is breached, or at any rate how often it is breached and enforced.

      I’m not sure if your second line is a statement of your opinion or is meant to be a paraphrasing of my own – I don’t think I said that clerks are willing to ignore the rule for business or personal reasons. The reality though is that clerks are employed by chambers to perform a particular role i.e. to get in work, and that can sometimes be in tension with the cab rank rule. It is precisely because of the tension between market and ethics that the cab rank rule is so important. It is a barrister’s professional responsibility to ensure that their clerks adhere to the cab rank rule on their behalf, and most of the members of the bar that I know are pretty assiduous about that.

  2. ‘The reality though is that clerks are employed by chambers to perform a particular role i.e. to get in work,’

    and to bully the pupils of course.

  3. How rewarding to know that all those clever aspiring Pupils that succeeded in the final push, studied for their interviews, worked hard and studied as if there was no tomorrow, get bullied in return for their efforts.

    That’s cheered me up no end!

    Simon

    PS While on the BVC I remember talking about the Bus Stop Rule. No wonder I didn’t get pupillage!!

    • The BUS STOP RULE?????

      But now I come to think of it, perhaps this is the rule applicable to legal aid payments – nothing for ages and then several all at once.

  4. It’s been a great help reading the post and comments. Let me add one point. I asked the Bar Standards Board for a list of all the disciplinary findings based on infractions of the Cab Rank Rule (para. 602 of the Code of Conduct). Not one. Zilch. Nada. This suggests to me that either the CBR is working so well that no one has ever complained. Or, more likely, no one bothers to complain about it because how would you prove it? Or because the list of exemptions is so full that the CBR is in reality a fiction.

    Indeed, how about an approach where we say there is no rule but there is a principle at stake here–proper and unfettered representation. Moreover this principle must apply to all that supply legal services. On this basis where the principle goes awry, eg. double booking in chambers, a valid complaint can be made to the Legal Ombudsman, so some form of redress can be obtained.

    • John Flood,
      OR it suggests that (potential) clients who are the wrong end of a breach don’t have an incentive to pursue it because 99 x out of 100 they are able to source alternative counsel and things move on. i.e. a breach in most cases causes little prejudice.
      OR it happens but is not found out about.
      OR a combination of my suggested reasons and yours.

  5. So the Cab Rank Rule is meaningless and ignored with impunity. If you don’t enforce a rule nobody will pay it any attention.

    It’s a bit like contact orders really, if you don’t enforce them they will be ignored with impunity.

  6. familoo, let me pick you up on one element there which is the 99 out of 100 sourcing alternative counsel. This IS the problem–one shouldn’t have to source alternatives. Let me make a comparison. I’m about to have heart surgery and have lined up a great surgeon in whom I have confidence with a long record. Would I be happy on the day to be told that I’m getting an alternative? Perhaps not.

    I don’t think barristers are fungible. Nevertheless there is something awry with a system that permits this kind of double booking. What occurs to me is that it benefits the barrister more than the client. The Bar must now realize it has customers as well as clients.

    • John,
      I was simply aiming to expand on your list of why there may be a nil complaints stat, not arguing the merits of the cab rank rule. I agree that the principle of obtaining counsel of choice is important. Thankfully in most cases high quality representation can still be obtained, but the rule exists to protect the minority not the majority. I think the bar does realise it has customers as well as clients. However, the greater the pressures on the profession in terms of downward pressure on price, the greater the incentive (necessity?) of ramming the diary. This does not benefit clients but is difficult to avoid. I am thinking of course of the areas of work typically covered by legal aid, where of course the cab rank rule applies, but in truth the degrading of the fees of the publicly funded bar has a knock on effect on the market rate for privately paid work (for example Local Authorities try and benchmark their fees against legal aid rates and use that to drive down price). In my area of work double courting is increasingly common and does not result in a good client service IMHO, Last week my opponent (a solicitor in fact) was double courted with 2 cases in 1 court and 2 in another. At least one of her clients was privately paying, as was mine, who had to pay for me to wait at court whilst those other matters delayed our negotiations. I’m going slightly off point, but you can see the distortions that the difficulties in legal aid can have on privately paid practice.
      I think that when looking at the question of double booking one has to look at the reality. In some cases an instruction is on the request of the lay client who has specifically researched her choice of counsel, or who has selected counsel based on their solicitor’s recommendation. In many more the choice of counsel is left in the hands of the professional client and where there is a good working relationship with chambers and confidence in a particular team within chambers some solicitors are happy to instruct “x, y or z at B chambers”. Some instruct an individual, some a chambers, some vary practice according to the needs of the case. I don’t see any problem with proactive diary management by clerks where the professional client is kept informed and consents, but where there has been a booking for named counsel that must be honoured unless the solicitor agrees to a change. This flexibility benefits both counsel and client – if diaries are properly managed more solicitors end up obtaining counsel and fewer are turned away because nobody is available. In family law bookings are often at short notice, and solicitors need chambers to be able to flex their diaries so that urgent matters can be accommodated. And the check in all of this is that individual counsel are personally professionally responsible for the conduct of their clerks and for keeping tabs on what they are doing on their behalves. I certainly monitor this closely and most of my colleagues do the same. That this is something that is rarely the subject of complaint or discipline does not prevent me from taking it pretty bloody seriously because any charge of professional misconduct is potentially career ending.

  7. [...] 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 [...]

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