Why the cab rank rule is history

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By Judge John Hack on

There’s never a taxi when you want one — the solicitors’ professional body says the bar’s regulation is arcane, irrelevant and reached its sell-by date

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For most modern law students, cab ranks are where those little black buses tout for trade. They are generally unaffordable to all but the most indebted to the bank of mama and papa — with a pissed Saturday night splurge being the contact most might have.

But the cab rank principle has formed the bedrock of bar ethics for years — and now it is being dismissed as irrelevant by the larger branch of the legal profession.

For those struggling with the term, in essence the rule requires barristers to accept instructions in the order they come through the door.

In other words, provided the barrister purports to be experienced in the field, regularly appears in the court where the case is being heard, and the brief fee is broadly within the bounds of reasonableness, the lawyer can’t turn down the instructions.

A core rationale for the rule was a bid to prevent barristers from shunning legally aided cases in favour of more lucrative privately funded instructions. It was also designed to stop barristers from closing the door on work on the grounds that they didn’t fancy the cut of a certain client’s jib or the unpleasant activity in which a client has allegedly been involved.

But for at least the last two decades, grumbling abounded that the cab rank rule was honoured more in the breach than in observance. Critics suggest that chambers’ clerks were adept at concocting plausible excuses as to why Mr or Ms So and So was sadly unavailable for that legally aided GBH trial, while very happily prepared to devote hours to pre-trial prep for a privately funded white collar fraud defence.

However, these days legal aid has dried up to the point where the criminal bar is on the endangered species list and barristers outside the still successful top end of commercial practice are generally gagging for any instructions.

Therefore, on the principle of beggars not being choosers, barristers are keen to take pretty much any instructions coming through chambers’ doors, regardless of the order and the lack of niceties around specific clients.

Responding to a Bar Standards Board (BSB) consultation, the Law Society — which represents solicitors in England and Wales — has diplomatically suggested the cab rank rule has reached its sell-by date.

In its response, Chancery Lane neatly summarises the core issues around the cab rank today:

“Barristers for obvious commercial reasons are likely to want to accept work; solicitors are unlikely to wish to press barristers to do work which is obviously unpalatable to the barrister; and there is a good supply of barristers willing to undertake work.”

All of which leads the society to “query whether the rule actually has any significant operation beyond being a background cultural ethos that may make a difference in a very small number of cases. We note that solicitors are not subject to the same rule but that there are no cases where individuals with properly funded and arguable cases have not been able to find solicitors to represent them”.

It goes on to argue:

“The existing standard terms are irrelevant to the cab rank rule … [I]n effect, solicitors and barristers are, in the overwhelming number of cases, reaching acceptable commercial terms either implicitly or explicitly which ensure representation. It [would be] sensible for the BSB to take a significantly different approach to the standard terms, which could reflect the commercial realities more effectively.”

The Law Society suggests the BSB should reform the rules to allow barristers to refuse work more generally “if the terms of work are non-contractual, impose inappropriate and unreasonable obligations on the barrister, provide unusual or wholly unreasonable commercial provisions”.

Is this the death of the cab rank rule — if it is not actually dead already? Probably. But for the time being the BSB is keeping its powder dry.

Yesterday, a BSB spokesman would only say:

“We have received a number of responses to our consultation on standard contractual terms and the cab rank rule. We will consider each one carefully and will issue a response to this consultation in due course.”