End of the line for the cab-rank rule?

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22 January 2013

Bar: captivated by the cab-rank rule

The cab-rank rule is ineffective and should be removed from the barristers’ code of conduct – and instead applied as a principle to all providers of legal services, including alternative business structures (ABSs) – a report published today has urged.

The Legal Services Board, which commissioned the academic report, warned that the rule could be undermining its objective of ensuring access to justice by inhibiting specialisation, as well as interfering with the promotion of market competition.

Written by Professors John Flood of the University of Westminster and Morton Hvvid of the University of East Anglia, the report found no evidence of the rule being actively monitored or enforced by the Bar Standards Board (BSB) or that it ensured representation.

The authors added: “We are not convinced that it even is a proper rule. It seems at best a statement of principle masquerading as a rule in order to make it appear to have more teeth than it does.”

The rule requires a barrister to accept any work they are available for and competent to do. The report – which was based on a literature review, social media sources, and interviews with lawyers and legal regulators – said: “While the Bar is captivated by the rule and has promoted it as a shibboleth, we have no evidence as to its efficacy nor that it is understood within the legal marketplace. The BSB has no disciplinary findings based on the rule. The Legal Ombudsman has received no complaints based on the rule. No one appears to know of any infractions of the rule.”

In the modern legal market, the barrier to representation is one of clients’ finance rather than the character of their offences, it said. The rule applies only to self-employed barristers instructed by professional clients and is subject to a raft of exceptions and exemptions. It is “about money – how it is negotiated, how it is divided between solicitor and barrister, and the risk analysis of cases and who bears the risk”.

The fact that the rule does not apply to public access clients and barristers “raises the valid question about whether it is legitimate to ask if the cab-rank rule distorts the legal services market”.

There were three options, the authors suggested: to leave the cab-rank rule as it is, to abolish it, or to keep it as a principle rather than a rule that “should apply to all providers of legal services, including [ABSs]”.

If a rule was deemed necessary, it could be based on a New York State Bar rule which says: “You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability.”

Such a rule would be “clear and unambiguous” and applicable to all lawyers, they said. It could be augmented “by including references to type of client, the nature of the case/crime or the defence required”, which “would deal with the original aspects – unpopularity of clients and heinous nature of crimes – of the cab-rank rule that have since been overshadowed by arguments over funding”.

If the number of available barristers was small in a particular instance, regulators could “monitor the market in order to ensure that there is no market abuse or failure”.

In an introduction to the research, the LSB said: “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…

“Thus the cab rank rule could potentially 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.”

The LSB said the impact of the rule on the regulatory objectives was “complex… and worthy of closer analysis” It has invited views from professional and consumer stakeholders.

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