The Legal Services Board (LSB) has criticised the Bar Standards Board’s (BSB) failure to apply the cab-rank rule to public access work and said this omission will reduce the impact of rule changes that widen the scope for barristers dealing directly with clients.
However, the LSB decided that there was still enough merit in the proposals to approve rules that allow barristers to represent directly people who can qualify for legal aid, and for those under three years’ call to undertake public access.
The justification for the cab-rank rule has been the cause of tension between the LSB and both BSB and Bar Council of late, and the LSB’s notice approving the rule changes seems pointed in that context.
“The principle that legal services should not be withheld by a barrister because of the nature of the case, the personal beliefs of the client or the source of funding is a fundamental one, and a principle that the LSB supports. Where they are dealing with a ‘professional client’, the cab-rank rule positively obliges a self-employed barrister to accept instructions (subject to a range of exemptions).
“The LSB considers that not having an equivalent provision for public access cases undermines the access to justice arguments on which both the cab-rank rule and this application are based.”
In response to LSB questioning, the notice said, the BSB cited the general duty not to discriminate – “though the LSB notes that the BSB do not deem this to be sufficient when dealing with a professional client” – the fact that there is no similar requirement on solicitors with whom barristers may be increasingly competing for work, that barristers should be able to refuse work that is “not reasonable” for them to accept, and the need to allow barristers to develop a successful practice as they see fit.
The LSB said: “While these arguments may not be without some merit, they appear to be at odds with what is presented in other contexts as a fundamental principle. Further, the LSB considers that some of the reasons given by the BSB for the cab-rank principle not applying to public access work are inconsistent with the regulatory objectives in the [Legal Services] Act.
“Specifically, having different applications of the obligation to accept instructions is likely to impinge on access to justice if this means a member of the public seeks legal advice or representation but is unable to find a barrister willing to provide it. The interests of consumers are not being protected and promoted if barristers are in a position where they can make a choice to prioritise their own interests over their (potential) client’s interests.
“Inconsistent obligations on barristers to accept instructions are also likely to prejudice the promotion and maintenance of adherence to the professional principles of independence and of observing the best interests of the client and the duty to the court if the barrister is choosing ̳’business interest’ over client interest or the interests of justice.”
Nevertheless, the LSB said it recognised that a substantial motivation for the rule changes were to facilitate an increase in the number of barristers able to do public access work for a lower fee and therefore increase access to advice and representation. “While the LSB considers that the omission of a provision analogous to the cab-rank rule is likely to lessen the benefits of the change, it does not believe that it removes them entirely.”
But the LSB indicated that the issue remains live and will be looked at again when the BSB submits its new code of conduct.
BSB chair Baroness Ruth Deech said: “These changes will make direct access to justice easier by allowing more clients to go straight to a barrister. Also, allowing junior barristers to undertake public access work will greatly improve consumer choice and harness the energy, expertise and talent offered by younger members of the Bar.”
Bar Council chair Maura McGowan QC said the changes create “a level playing field for clients” and allows more flexibility for junior barristers as they start to build a practice.