The Bar Standards Board (BSB) said last night that it was assessing self-reports from barristers who say they will defy the cab-rank rule.
But regulatory specialists have predicted it is unlikely to take disciplinary action against them until they actually do so.
Some barrister signatories to the widely publicised Declaration of Conscience said they self-reported to the BSB after pledging not to prosecute climate protestors or advise on fossil fuel projects.
At the start of the meeting of the BSB’s main board yesterday, chair Kathryn Stone issued a short statement about the letters received by its director general, Mark Neale.
“It is not, of course, for the board to become involved in such operational matters, but the director general assures me that these reports will simply be assessed in confidence in the usual way,” she said.
The BSB has issued a separate statement emphasising the importance of the cab-rank rule in ensuring that everyone can have access to legal advice.
“If a self-employed barrister receives instructions from a professional client, and the instructions are appropriate taking into account their experience, seniority and area of practice, they are generally obliged to accept those instructions irrespective of the identity of the client, the nature of their case and any belief they may have as to the client’s character or cause,” it clarified.
Writing on the website of City firm Kingsley Napley, regulatory partner Julie Norris and associate Imogen Roberts said: “We doubt very much that the regulator will look to commence regulatory proceedings where barristers have merely stated a future, non-specific, intention to breach a rule, without having actually done so.
“It is hypothetically possible though – think breaches of, for example, core duties 4 and 5 (‘you must maintain your independence’, and ‘you must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession’), but it is hardly the strongest footing on which to bring regulatory action.”
If the BSB instead decided to wait until actual breaches of the rule occurred – unlikely as it seemed that signatories would be instructed in such cases – they questioned how the regulator would come to know about them.
“Will the barristers need to self-report every time they turn down a relevant case?”
The lawyers said an “actual, admitted or proven” breach of the cab-rank rule would likely provoke a “solid regulatory response”, however.
They added that there have been only a few cases where barristers have been prosecuted for breach of the rule.
One such case, in 2006 resulted in a reprimand. Here, a religious barrister who refused to represent a client on the basis of the client’s sexuality was found by a disciplinary panel to have committed professional misconduct for breaching the cab-rank rule without justification.
“This case carries little by way of useful precedent as it deals with a breach of the cab rank rule on the basis of (otherwise unlawful) sexual-orientation discrimination. Signing the declaration involves a hypothetical breach on the basis of a very different ideological underpinning without an associated unlawfulness (e.g. discrimination).”