Cab rank rule a ‘myth peddled by the bar’, says retired judge
Debate continues
A retired circuit judge has waded into the debate over the cab rank rule, arguing that it’s a “myth” and observing it “has always been optional”.
Alasdair Darroch, a former solicitor advocate, says barristers can easily “evade” the professional obligation to represent everyone by simply saying “they are too busy”.
In a letter to the Guardian yesterday, the former judge goes on to claim the rule is a “myth peddled by the bar to suggest that they have higher standards than solicitors and to frustrate reforms that might benefit solicitors”.
“When I was in private practice, one of my partners explained how the rule works: if a barrister does not want to do a case they will not do it, but if you pay them enough they will want to do it,” Darroch tells the newspaper.
The letter comes after it emerged over the weekend that over 140 lawyers, including some prominent KCs, had signed a “declaration” pledging to refuse to act for companies supporting new fossil fuel projects or to prosecute peaceful climate change protesters.
The idea that saving the planet could trump a barrister’s professional obligations was met with unease by certain members of the legal Twitterati.
“The day that I decide I cannot defend or prosecute somebody because of what they are accused of, is the day that I should find another profession,” The Secret Barrister wrote. Elsewhere, barrister Joanna Hardy-Susskind said she was “tired of the criminal justice system being luxuriously used by lawyers who don’t work in it to score points.”
In a piece for the Guardian on Friday, Jolyon Maugham KC, a former tax barrister who now runs The Good Law Project, a not for profit campaign organisation, explained his reasoning for signing the declaration:
“Sometimes the law is wrong. What it stands for is the opposite of justice. Today’s history books speak with horror about what the law of yesterday did, of how it permitted racism, rape and murder. And tomorrow’s history books will say the same about the law as it stands today, of how it enabled the destruction of our planet and the displacement of billions of people.”
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39 Comments
Anonymous
Lol
Regal Cheek
Absolutely correct. Solicitors will freely pick and choose their clients and – surprise – in the event of a conflict will generally pick the one with the biggest wallet.
Nice to see that some lawyers are standing up for justice and ethics.
Beagle Chic
Are you paying the mortgage and school fees if I represent clients that can’t pay my market rate? Didn’t think so. Get off your high horse. You can virtue-signal in your career all you want but stay away from my livelihood, you are not welcome.
Smeagol's leak
I have nothing to add, just enjoying the display names
Legal Cheek Deletes All Interesting Comments
The letter to the Guardian COMPLETELY misses the point.
Yes, it is easy to get around the rule and not get caught. It’s also easy to accept a bribe and not get caught. The point is, most barristers take their ethical obligations seriously.
As for the hearsay evidence presented in the letter (“when I was in private practice someone told me that barristers will turn down a brief unless paid enough money”), that counts for literally nothing. Indeed, it doesn’t even address the point.
Cabbie
Are there any practitioners who genuinely believe in the cab rank rule?
It seems to be mostly bar students and regulators who think it exists.
The reality is many barristers only defend, or only represent the govt or refuse to represent the govt. They just do it quietly without making a song and dance about it.
The cab rank also says little about fees. At best the rule is “I will represent any client willing to pay my extortionate fees” – that naturally means some barristers will only represent fossil fuel companies because the other side can’t afford their fees.
If you think of an actual cab rank – would it make sense if each taxi driver set their own fare and insisted they don’t discriminate?
Ash from Pokemon
Spot on. I’d also point out that commmercial conflicts would in practice prevent a fair few barristers acting for all and sundry.
Purely by way of example, if someone approached a specialist police law chambers to act against the police, they would probably not do it, for the same reason that a radical human rights chambers would not act for the police.
Barristers’ chambers carefully market themselves according to what kind of business and clients they want to attract. Any unwanted custom is carefully deflected by their clerks. This obviously contradicts the principle of the cab rank. It’s just not acknowledged out loud.
Unless barristers opt to act in cases which are contrary to the predominant culture and commercial interests of their chambers, the cab rank rule is a bit of a myth I’m afraid.
Just Anonymous
I believe in it.
And I abide by it.
As do most of my colleagues.
Ash from Pokemon
I’m sure there are many barristers who observe the cab rank rule.
Likewise, there are also many barristers who don’t. Such as criminal barristers who exclusively do defence work.
Given the contradictions I and others have raised, the cab rank is, in practice, an optional rule, rather than a mandatory one.
Just Anonymous
You haven’t raised any real contradictions at all.
As others have pointed out, it is perfectly permissible to decline to act if you are too busy or if you are not being offered a proper fee.
You are correct to say that chambers are (generally) carefully marketed. It is absolutely correct that (for example) some are predominantly known for defendant work and others for claimant work. That is a natural consequence of the legal marketplace: solicitors often prefer to use counsel they perceive as being ‘defendant’ or ‘claimant’ depending on which they are acting for.
None of that affects the fundamental point that we do not (or should not) reject instructions merely because we dislike the client or disapprove of the law supporting his/her legal position.
Ash from Pokemon
Your answer merely reiterates the usual de jure arguments for cab rank.
Interestingly, you haven’t addressed the point regarding commercial conflicts, and how barristers quietly decline instructions out of expediency. It’s futile to deny that this happens in practice.
Let’s put it another way. How often does the BSB sanction barristers for breaching Rule C29-30 of the BSB Handbook? If there are any recent cases that shed light on this, then those would be most welcome to the debate
However, if the rule isn’t enforced in principle, then it isn’t much of a rule in practice.
Cabbie
Nonsense.
The best example is a set of chambers who regularly represent the police. Do you think if a claimant offered to pay the same rate paid by police to bring a claim against the police a barrister within that set would do it? Of course not.
Likewise re defence only sets.
Just Anonymous
I did not specifically mention commercial conflicts because the point is a bad one and life is short. We are obliged to refuse instructions where there is a genuine conflict of interest between ourselves and the client. So what you raise as a ‘contradiction’ is, once again, another well-established and uncontroversial exception.
And I repeat the fundamental point that neither of you clearly have any response to: “we do not (or should not) reject instructions merely because we dislike the client or disapprove of the law supporting his/her legal position.”
I appreciate that the pair of you have strong opinions that the cab rank rule is not followed in practice. However, neither of you offer any evidence to support those opinions (whether in the form of relevant experience or otherwise). Thus, it is unclear why you think those opinions merit any weight.
Cabbie
“we do not (or should not) reject instructions merely because we dislike the client or disapprove of the law supporting his/her legal position.”
This is a very narrow definition of cab rank rule.
Cab rank rule is the obligation on barristers to take on any case if they have capacity and fee is appropriate.
This would mean, for example, chambers who are defence only – you believe this is entirely coincidental?
Or chambers who only represent the police (we all know which ones) – coincidence?
That is not to mention the huge fee range across the bar. As barristers’ fees are not set by the regulator, the reality is most barristers will only act for certain clients because they are the only ones who can afford their feee.
Cabbie
Example 1: there is a well known set who only defend. They will *never* prosecute. Do you think that is a breach of the cab rank rule?
If it’s a breach why hasn’t the regulator taken action against the members of that set or the set as a whole?
Example 2: well known set who only act for police. They will never act for claimant bringing claim against police. Is that a breach of cab rank rule?
None of these examples are a secret.
You are completely ignoring the reality that breach of the cab rank rule is so widespread as to be a myth. There are too many examples of breaches for it to be a rule.
I prefer Uber, just to avoid speaking to cabbies
Cabbie, if a barrister holds themselves out as having expertise acting for the prosecution or defence then they are entitled to take the position that they can decline work outside their expertise. Your comments seem to show a consistent theme of being angry, bitter, thinking you know a lot and exposing your ignorance. So you’d be a great cabbie.
Cabbie
If a barristers says they specialise in police law but only has expertise in defending the police and not in representing claimant’s bringing claims against the police then they probably ought not to be allowed to practise.
Likewise criminal law specialist who can only defend or prosecute.
I will ignore your ad hominem attack as it adds nothing to this discussion.
I prefer Uber, just to avoid speaking to cabbies
Thank you, you have proved all the points in my previous post quite nicely. Why are you so bitter and obsessed about this when you know nothing about it? Let it go, darling. Let it go.
You should use your time learning how to ensure verbs and nouns agree and how apostrophes work. Poor basic grammar does mean you come across as a thick angry ignorant online cliché.
Cabbie
You are definitely a student. Ciao.
I prefer Uber, just to avoid speaking to cabbies
Cabbie, descending into clichéd deflection now? Très amusant.
And, my dear, you are wrong. Which may come as a surprise to you, but less of a surprise to everyone that knows you.
While you come across as mind-numbingly basic and dull, watching you flounder around as you grind on whatever grubby festering resentment drives your posts is quite entertaining
SC
Totally! There are chambers that refuse to do government work and who refuse to take people on with particular government experience.
This is incredibly elitist as it excludes people from non conventional backgrounds, who can’t afford to work for free for charities or be picky with their employers; from doing a good job at chambers they may actually be morally aligned with.
Personally, I think the cab rank rule should be enforced. You shouldn’t mix the law and politics and everyone has the right to representation. The best legal outcome often come from arguments which on the face of it are “rubbish” and or “immoral”, but are argued out. It’s important to keep that balance! And justice needs to be seen to be done, irrespective of the person seeking defence.
Familiar
I feel like I’ve read this comment before… do you have a burning grievance about a particular Chambers for not taking you on?
Anonymous
Loving this
Psymon
But under the cab rank rule barristers are allowed to say no to a brief the client can’t pay the barrister’s normal fees. So what is the point being made? If you can’t afford me and you can’t pay up front if I ask for that then I can decline the brief.
I prefer Uber, just to avoid speaking to cabbies
Yes. The comments here are heavily weighted towards angry resentment-driven commenters who spout about the cab rank rule while having no idea what it is.
Barristers clerk
Generally, if a brief comes in a barrister doesn’t want, and they have an otherwise busy diary, they will invariably say they don’t have capacity.
If something juicy comes in over the same hypothetical period, which is well paid, then they’ll find that capacity.
In fairness that often involves destroying their evenings and weekends, so I think the capacity excuse is legitimate where the diary is otherwise busy. If they want to flog themselves for the brief that’s up to them, but they shouldn’t and don’t flog themselves for cab rank because its hypothetically possible to take on the rubbish case.
Tordenskjold
“Former solicitor advocate” no axe to grind there then. Some people take their ethical obligations seriously please let them get on with it.
Pull The Other One
Having worked for and with almost 20 Chambers in the last 20 years I can, from first hand, practical experience, tell you that the CRR is not observed in the clerk’s room and by nearly all barristers.
Consider,for a moment, how the CRR is in direct conflict with Fair Distribution of Work.
Find, if you can, the excoriating report Prof John Flood wrote for the LSB about ten years ago and see the whole idea of the CRR crash & burn.
Anon
I tend to think some of the comments here miss the point.
While the cab rank rule may not always be precisely followed in practice, it is a principle that creates a useful illusion for practitioners, the illusion that they approach each case openly, without preconceived ideas about the facts, law, issues, client or any related politics.
The illusion is helpful because it presents practitioners as mere tools, a refined version of the client themselves that knows the law and how it applies to the facts. The practitioner comes with no ascribed political views and clients can at least feel that the practitioner has not actively decided to take or not take the case.
Sets that exclusively defend/prosecute/represent the government etc can (just about) be justified under the rule, because the rule applies to areas in which you are a specialist, and you can be specialist in just prosecution/defence etc. Plus, it just about retains the illusion of approaching cases openly and without prejudice: just because you specialise in acting for the government does not mean you necessarily agree with the government.
The real danger is this band of lawyers publicly declaring they will not take certain cases on political lines, because it has the potential to ascribe views to those quietly going about their work. For example, those taking fossil fuel work may be regarded as ignorant of climate change because they don’t shout about the environment from the rooftops. It damages the illusion and has the potential to lead directly to cases being publicly and openly accepted/not accepted because of the politics/clients involved. That is harmful to all as either some clients will struggle to find representation, or lawyers will be unfairly chastised for properly taking work.
The cab rank rule is perfectly imperfect. It is vital, even if flawed. It is perilous to attack it as the group of environmental lawyers currently are. If they feel that strongly, they can quietly ensure they are unavailable when called on for work that is objectionable to them. Or say they cannot remain professionally independent because their strong views have compromised them on the issue. They should do that instead of creating problems more generally for other practitioners and the rule itself.
Anonymous
Indeed, although making it difficult for other lawyers to take on fossil fuel work is a feature, not a bug, of their movement.
Bring back Katie King
The only time barristers have anything to do with cab ranks is at two in the morning after a session with the sols when they’re too pissed to use the Uber app.
These ‘campaigning’ barristers are a terrible shower though. Nobody cares about their opinions or self-declared ‘ethics’. It’s all modish bollocks.
Lawyer of the future
British law should get over this anachronism of the bar and solicitors division and just fuse the two types of SERVICE providers (note I do not say ‘professions’) and hence eventually all former barrister judges would stop having to show they were somehow ‘superior’ to solicitors and solicitor advocates and doing all they can to disadvantage them, and all barristers could stop pretending they were more ‘ethical’ or ‘better’ than solicitors. The cab rank rule is indeed a myth designed to imply moral superiority – from long experience, if a barrister doesn’t like a client or fee or type of work he or she will just tell the clerk to say he or she is unavailable. No way to check, the ‘rule’ is an unenforced (and probably) unenforceable myth.
I prefer Uber, just to avoid speaking to cabbies
“British law”! That was a red flag that everything that followed would be ignorant, prejudiced bollocks, and that indeed was the case.
Lawyer of the future
British law should get over this anachronism of the bar and solicitors division and just fuse the two types of SERVICE providers (note I do not say ‘professions’) – as in Australia – and hence eventually all former barrister judges would stop having to show they were somehow ‘superior’ to solicitors and solicitor advocates and doing all they can to disadvantage them, and all barristers could stop pretending they were more ‘ethical’ or ‘better’ than solicitors. The cab rank rule is indeed a myth designed to imply moral superiority – from long experience, if a barrister doesn’t like a client or fee or type of work he or she will just tell the clerk to say he or she is unavailable. No way to check, the ‘rule’ is an unenforced (and probably) unenforceable myth.
Lower burden of proof
The legal cheek comments are not a court of law you can’t have something dismissed because it’s hearsay.
Jamie
The cab rank rule is a fudge and an illusion.
It creates the perception that everyone will receive the right to legal services.
The cab rank rule is not observed in practice and is selectively enforced on rare occasions for political reasons.
There are in fact entire sets who will refuse to do police work, or will never do defendant work. Ditto with barristers who do insurance or employment when it comes to taking sides. For these sets, their flouting of the cab rank rule is unofficial policy.
And of course, there is also the ability to turn down clients by either having extremely high rates or, as a last resort, asking one’s clerk to claim they are busy.
Who benefits from the selective enforcement of the cab rank rule?
Arguably, the reputation of the bar overall. The perception that everyone has equal access to justice is a compelling one and a major selling point.
However – it is also arguable that because this perception is untrue is most cases, maintaining and perpetuating this perception is actually harmful to the legal profession. The way the bar works is being advertised in a way that is
in truth misleading. It may have once been true, arguably, but if it was, then it is no longer – in the same way Thorntons chocolate is no longer “luxury”.
Anonymous
The Bar has been misspelt – it should always be spelt with a capital “B”.
Poor Mr Darroch
It is frustrating to have to teach people the same hard won truths over and over again. Orwell expressed it clearly in 1941:
“An illusion can become a half-truth, a mask can alter the expression of a face. The familiar arguments to the effect that democracy is ‘just the same as’ or ‘just as bad as’ totalitarianism never take account of this fact. All such arguments boil down to saying that half a loaf is the same as no bread. In England such concepts as justice, liberty and objective truth are still believed in. They may be illusions, but they are very powerful illusions. The belief in them influences conduct, national life is different because of them.”
Even if the cab-rank rule is not slavishly followed all the time, it is still important that people think it should be followed. Perhaps there comes a point where it is ignored to such an extent that the illusion no longer has any impact, but that is not a better state of affairs and we are plainly not there yet.
Lawyer of the future
‘British law’ refers to the laws of the whole of Great Britain. Not just the laws of England and Wales (Uber chappie/chappess likely a trainee or law student methinks, with what he or she thinks is supposed ’clever’ – but in fact bleeding obvious – point knowing that laws of E+W not same as for all of GB). It is not only the countries of England and Wales within GB who maintain the outdated, divisive and harmful (supposed) distinction between solicitors and barristers. Clearly Uber buyer doesn’t like to think of any law or legal system here except that of England and Wales – well that’s just not the case in reality so Uber buyer, try looking up the definition of Britain and apply to the words ‘British law’. Then add in to next essay.
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