Posted on | July 14, 2012 | 14 Comments
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:
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*).