The Law Society has responded to a Bar Standards Board (BSB) call for evidence on the cab-rank rule by questioning its “operational value”.
As part of its response, the society carried out an informal consultation with members of its specialist committees who regularly use barristers, which found that only one person had actually invoked the rule.
The society argued that barristers for “obvious reasons” were likely to be keen to accept work, solicitors were unlikely to want them to do work they found “unpalatable”, and there was a good supply of barristers.
As a result, the cab-rank rule was “seldom invoked” and may not have “significant operation beyond being a background cultural ethos that may make a difference in a very small number of cases”.
The society noted that solicitors were not subject to a similar rule, but there were “no cases where individuals with properly funded and arguable cases have not been able to find solicitors to represent them”.
It emerged last month that Vanessa Davies, director of the BSB, had apologised to the Legal Services Board (LSB) for failing to launch a review of the standard contractual terms and the cab-rank rule.
The Law Society said it understood that the rule could not be “unlimited in its effect” and that barristers “should not be forced to accept work for inadequate fees” or if they were too busy or if the terms of the contract were unfair.
“However, just as the BSB does not prescribe detailed fee levels or detailed criteria about what amounts to being too busy, so it is unclear why the application of the cab-rank rule should depend on, say, the length of time that can elapse before a barrister may sue for fees.
“It is inappropriate for a regulator to prescribe such issues in detail. In our view, such arrangements should be open for commercial negotiation with the barrister able to refuse work if the terms suggested are clearly unfair or unreasonable.”
The society agreed with the BSB that it was important that the terms on which services were being provided were clear, but in most cases, they would only be relevant if the relationship broke down.
“Barristers and solicitors are generally sophisticated commercial individuals and, in many cases, have ongoing relationships which neither side wishes to jeopardise.”
The consultation found that most solicitors were using the current standard terms for contracts with barristers, though a minority sought to “alter the standard terms on payment”.
The society called on the BSB to take a “significantly different” approach to the standard terms which reflected “commercial realities more effectively”.
Despite its apparent lack of use, the cab-rank rule has been a thorn in the side of the BSB, resulting not only in clashes with the Law Society but a dispute between the Bar Council and the LSB, which was resolved only when the Bar Council accepted that it had breached the regulator’s independence.
There was also a row over academic research commissioned by the LSB which recommended scrapping the rule.