Do We Need a Cab Rank Rule for Barristers?

Tuesday, January 22nd, 2013

 
I’ve been working in India recently on the Globalization, Lawyers and Emerging Economies project (GLEE). So I got used to travelling around in autorickshaws–cheap, cheeful and extremely plentiful.
With this dubious intro I change the topic around to the Bar’s cab rank rule which essentially says barristers shouldn’t refuse clients. I’m not sure, however, if barristers are cheap, cheerful and extremely plentiful. In order to find out more, the Legal Services Board commissioned me and Morten Hviid of UEA to research the cab rank rule.
Our report is published today and you can download it here. The LSB is inviting comments on whether the rule should be retained, removed, or altered. Here is the LSB summary:

 

 

Cab Rank Rule Research Summary
Why this?  Why now?
In May 2012 the LSB commissioned Prof. John Flood (University of Westminster) and Prof. Morton Hvvid (University of East Anglia) to carry out a literature review analysing the impact on the market of paragraphs 601-610 of the of the Bar Standards Board’s (BSB) code, otherwise known as the ‘cab rank rule’. The LSB published The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market on 22 January 2013.
Since at least the 17th Century it has been an important principle for the Bar that everyone who might benefit from having representation should have access to a suitable barrister.  More recently this desire to ensure access to justice, of which representation is arguably a crucial element, was enshrined with the Legal Services Act 2007 (“the Act”) as one of the eight regulatory objectives.
However, while the formal cab rank rule is clearly aimed at ensuring access to justice, it might equally be argued that its requirement for each individual barrister to offer services to all, could act as a barrier to barristers looking to specialise.  As far back as 1776, when Adam Smith’s The Wealth of Nations was published, economists have been aware of the wider economic benefits specialisation can deliver for an efficient, competitive market.   Thus the cab rank rule couldpotentially both undermine its own aim to improve access to justice (by reducing opportunities for specialisation and so the provision of niche services) and also damage other regulatory objectives, such as to promote competition.
While paragraphs 601-602 of the BSB’s code sets out the core principles of the cab rank rule, paragraphs 603-607 outline a series of exemptions and exceptions to the rule, perhaps recognising that its absolute status is less relevant in 2013. The fact that so much of legal aid work, where access to justice may be thought paramount, is exempt serves only to highlight this tension between principle and rule.
In practice therefore the impact of the rule on the regulatory objectives is complex, and the LSB believed, worthy of closer analysis.
A further reason for undertaking this study now is the desire of the BSB, in the context of the Act, to move from a regulatory framework based on highly elaborated rules to one more closely aligned with the outcomes set out within the Act.  This itself raises a number of questions for the cab rank rule.  Could it be reframed as a principle?  What impact does the rule currently have?  What would happen in the absence of the rule altogether?  This research paper considers these issues and more through an analysis of the available literature, supplemented by interviews with the profession.
The findings
The report found no evidence of the rule being actively monitored or enforced by the regulator. In terms of impact, it could not be shown that it ensured representation. There was little evidence that it was understood within the market:  indeed specialisation by some Chambers arguably demonstrated that the rule was regularly breached.
That is not to say that the principle itself of representation for all was not followed in spirit by the profession, but just that is it not clear whether the desire to offer representation is driven as much or more by the professional principle or by economic calculations.  It certainly would seem that, in England and Wales at least, clients who at one time may have been considered unattractive e.g. terrorists are now, through the wider publicity benefits they might offer, perhaps somewhat more attractive than many other types of client.
In the end the report seeks to probe the future benefits of a rule, which while having significant professional benefits, is limited in its practical application?  The range of exemptions and exclusions, including those barristers offering direct public access, already limit the practical scope of the rule. Whether measured by complaints or disciplinary findings, the authors argue that there is no evidence that the rule is applied beyond a general desired professional principle.
The report concludes that, as the profession moves from a rulebook to a code of principles or outcomes, it would seem appropriate to consider whether the cab rank rule could similarly be moved to a principles basis.  Here the report noted that the New York State Bar Client Rights number 10 provides one possible model:
“You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability.”
If modernised to reflect our national perspective on protected characteristics and supplemented with the additional protections that “you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence” the report provides one basis for the retention and reform of the cab rank rule in line with the strong ethical foundations that underpin the Bar.
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.

 

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