The Cab Rank Rule: still driving the Bar?

Posted on 15th Feb 2013 in Legal Profession

What is the meaning and purpose of the so-called Cab Rank Rule in the context of the new legal services market? Is it a Holy Cow or Shibboleth, taken for granted but more honoured in the breach? Or is it still a driving principle, a philosophical touchstone that underpins the approach of advocates to their profession?

I'm not going south of ten grand on the brief!

The cab rank rule: more honoured in the breach?

These are the questions posed by Professors John Flood, of the University of Westminster, and Morten Hviid, of the University of East Anglia, in their recently published report for the Legal Services Board.

To most barristers, it may seem surprising that anyone should even think to ask them. It’s a bit like asking doctors whether the Hippocratic Oath is still “relevant” in today’s medical services market; or asking a priest whether the secrets of the confessional are a bit old hat in the context of multimedia delivery to the religious services market. In fact it’s a bit like facing one of those awkward bores at a party who insist on asking you how you can represent a client you know to be guilty.

Nevertheless, the idea is worth probing, not least to see what it actually means in practice. According to the report’s introduction,

The cab rank rule has been a defining feature of the English Bar for several hundred years. It original purpose was to ensure that parties to a case would obtain representation regardless of the predilection  of the barrister to take the person as a client.

The report points out that although the Bar “strongly subscribes to it”, the rule has not been the basis of any disciplinary finding by the Bar’s regulator, the Bar Standards Board. Moreover, it is virtually unenforceable because all but the most egregious detraction from the rule will be unnoticed. It does not apply to direct access clients (ie those accessing a barrister’s services without first being referred by a solicitor), nor does it apply to solicitor-advocates. The report questions whether it is really a rule at all, given that it is in practice neither enforced nor enforceable, and concludes that it serves no clear purpose.

We think Rumpole of the Bailey, a fictitious representation of the finest traditions of the criminal defence Bar, would not agree. But perhaps what Rumpole, a creation of the genuine Sir John Mortimer QC, whose proudest boast was that he was the best playwright who ever defended a murderer, represents is a noble aspiration. He is a latter-day knight errant, a bit like Marlowe, the private eye in Raymond Chandler’s novels, who remains admirable even though we don’t actually want to be like him ourselves.

Rumpole is not alone. A real barrister, Cherie Booth QC, a member of Matrix Chambers better known to the general public as Cherie Blair, wrote to the Guardian last June, pointing out that that by reason of the Cab Rank Rule she was obliged to take on cases in her area of specialisation, ie public law, for clients acting against the Labour government while her husband was Prime Minister. It was therefore completely wrong to suggest (as a journalist had done) that she was only able to continue to practice at the Bar because she could turn down cases which might be perceived as giving rise to a conflict of interest. Not so.

According to the Bar’s Code of Conduct (Bar Standards Board 2012), paras 601 and 602:

601. A barrister who supplies advocacy services must not withhold those services:

  1. on the ground that the nature of the case is objectionable to him or to any section of the public;
  2. on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;
  3. on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available as part of the Community Legal Service or Criminal Defence Service).

602. A self-employed barrister  must comply with the ‘Cab-rank rule’ and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:

  1. accept any brief to appear before a Court in which he professes to practise;
  2. accept any instructions;
  3. act for any person on whose behalf he is instructed;
    and do so irrespective of

    1. the party on whose behalf he is instructed
    2. the nature of the case and
    3. any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person.

The Cab Rank Rule is said to date back to the trial of Charles I, when John Cook as Solicitor General was commanded to prosecute Charles I for war crimes. All other lawyers left town in order not to be asked. On the return of the monarchy in 1660, Cook, now a judge, was himself prosecuted for having indicted the king (regicide). Despite arguing that he was under a duty to accept any brief accompanied by an appropriate fee, Cook was hung, drawn and quartered.(As the LSB report drily notes: “not the most auspicious start for the basic duty of the Bar”.)

The report quotes a number of judicial comments in support of the rule, including Sir Igor Judge P, giving the judgment of the court in R v Ulcay [2008] 1 WLR 1209, para 39:

Counsel cannot choose his clients, or more accurately, cannot refuse to accept the instructions of a solicitor to act on behalf of an individual because of the nature of the charge he faces, or because of his character and reputation.

The LSB report only quotes that passage, but Sir Igor went on to discuss the rule in more detail, and referred to other cases (some of them also quoted in the LSB’s report) as follows, at paras 39–41:

… The “cab-rank rule” is clearly laid down in paragraph 602 of the Bar Council’s Code of Conduct, and the self-employed barrister is required in terms to “comply” with it. Specific exceptions are provided. One is professional embarrassment, which may arise if, having regard to his other professional commitments, the barrister will be unable adequately to prepare the case: paragraphs 602 and 603(b). The existing exceptions are not immutable, and may be extended from time to time. However further exceptions have not yet been admitted, either following the disappearance of the advocate’s immunity from suit, or the publicly ventilated difficulties arising in relation to legal aid, or indeed to what Mr Aina described as the “human rights” of the individual barrister, or the proper operation of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

40. The cab-rank rule is essential to the proper administration of justice. It is not without its critics, although criticism is largely directed at the possible evasion of the principle, rather than the principle itself. For example in Arthur J S Hall & Co v Simons [2002] 1 AC 615 Lord Steyn, while doubting whether much weight could be placed on the “cab-rank rule” in support of the immunity of the advocate from suit, nevertheless affirmed that it was a “valuable professional rule”; so did Lord Hoffmann, who underlined that it was a “valuable professional ethic of the English Bar”. In Ridehalgh v Horsefield [1994] Ch 205, the Court of Appeal quashed the wasted costs order made against counsel in Antonelli v Wade Gery Farr just because the judge overlooked the obligations imposed on counsel by the cab-rank rule. The group of cases under consideration all arose from civil proceedings, but Sir Thomas Bingham MR expressed the hope that the judgment would provide general guidance which would be of value in criminal cases as well. We simply emphasise that if the cab-rank rule creates obligations on counsel in civil proceedings, it does so with yet greater emphasis in criminal proceedings, not least because to a far greater extent than civil proceedings, criminal proceedings involve defendants charged with offences which attract strong public aversion, with the possibility of lengthy prison sentences, when more than ever, the administration of justice requires that the defendant should be properly represented, so allowing the proper exercise of his entitlement at common law and his Convention rights under article 6, summarised by Lord Bingham of Cornhill in R v Jones (Anthony) [2003] 1 AC 1.

41. The cab-rank rule, and the rationale which supports it, applies whenever, and however late, the barrister is instructed. The absence of what he would regard as sufficient time for the purpose of preparation does not constitute an exception. Paragraph 701(b)(ii) of the Bar Council’s Code of Conduct directs that a barrister should not undertake any task for which “he does not have adequate time and opportunity to prepare for and perform”. It does not constitute an exception to the cab-rank rule. Those exceptions are expressly identified in paragraph 602 where the rule is promulgated. Paragraph 701(b)(ii) is concerned to prevent a barrister from accepting work over and above his existing commitments which he will not be able adequately to prepare and deal with in a professionally competent manner. In our judgment, the barrister faced with the problem which faced new counsel in the present trial was professionally required, in the words of Sir Thomas Bingham MR in relation to Antonelli’s case [1994] Ch 205, 269 “to soldier on and do the best she could”. That exhortation itself conveys a clear acknowledgement of something of the difficulties which inevitably arise. The process would normally encompass discussions with former counsel, taking stock generally, analysis of the issues likely to arise thereafter, and sensible applications to the trial judge for adjournment as and when the need arose. And, perhaps we should add, in circumstances where counsel is soldiering on, doing his or her best, an order for wasted costs, or a successful action for professional negligence against counsel who has taken on this burdensome responsibility in such an awkward situation could not realistically be in contemplation in the absence of some remarkable subsequent developments.

That was a case about the circumstances in which professional representatives (solicitors as well as barristers) may withdraw services from a client by reason, inter alia, of professional embarrassment. Arthur J S Hall & Co v Simons [2002] 1 AC 615 was a case about solicitors’ negligence and immunity from suit. The Cab Rank Rule was also discussed in relation to immunity from suit in Rondel v Worsley [1969] 1 AC 191 and Saif Ali v Sydney Mitchell & Co [1980] AC 198. As the LSB report notes, “these cases demonstrate that barriers to immunity [from suit] are collapsing and lawyers are discovering that they can be as culpable as surgeons who leave behind scalpels in patients”.

So the Cab Rank Rule may explain some of the pressures on an advocate, but these won’t necessarily excuse him or her from criticism. But one could argue it goes further, and imposes what one might call a duty of professional disinterest, or even dispassion: as Lord Pearce (quoted in the LSB report) said in Rondel v Worsley [1969] 1 AC 191, 275:

It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full and fair hearing to be in the right. And it is a judge’s (or jury’s) solemn duty to find that out by a careful and unbiased investigation. This they simply cannot do if counsel do not (as at present) take on the less attractive task of advising and representing such persons however small their apparent merits.

The LSB report is a long one, nearly 50 pages. You can read it in full here. It concludes that while “the Bar is captivated by the Rule and has promoted it as a shibboleth” (presumably with the leadership and encouragement of the Bench, as quoted above and elsewhere), “we have no evidence as to its efficacy nor that it is understood within the legal marketplace”. What this appears to mean is that if clients don’t know they’re getting the benefit of it, we may as well scrap it. And that is indeed the authors’ recommendation:

We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalized legal services market. By all means the Bar can espouse it as a laudable principle, but it should not pretend that the rule is significant or efficacious.

Shortly before the report was published, the LSB approved a change in the Bar Standards Boards Code of Conduct, according to a press release on the BSB site:

The Legal Services Board (LSB) approved a Bar Standards Board amendment to the Code of Conduct, under which the cab rank rule will apply to both the new Standard Contractual Terms and to barristers’ own contractual terms, as published on their chambers website. Previously, clients had been denied the benefits of the cab rank rule when instructions were made on a contractual basis and this represents an important modernisation of that rule. In all other respects, barristers and solicitors are free to negotiate such terms as they see fit. The existing exclusions to the cab rank rule, such as conflict of interest or not being available, will continue to apply.

One wonders why, if they were about to recommend its abolition.

The LSB concludes its press release announcing the publication of the report by saying: “The LSB will be interested in hearing the views of stakeholders, both professional and consumer, on the report’s analysis and its suggestions for the way ahead.” The Bar Standards Board does not appear to have responded in any official sense as yet, but responses have come from other interested parties, as noted in this posting from the Clerkingwell blog.

Two points need to be made.

  • First, the above is not the official response of ICLR, it is merely a blog posting drawing attention to the report and its somewhat stark recommendation.
  • Second, if you consider yourself a stakeholder or, to put it more intelligibly, an interested party, then do please get in touch with the LSB and let them know.