Maugham: Quite a fine distinction
The Bar Standards Board (BSB) will not take action against barristers who have committed not to prosecute climate protestors or work for fossil fuel companies – at least until they actually refuse instructions.
Barrister signatories to the Declaration of Conscience drafted by the climate change campaign group Lawyers Are Responsible self-reported themselves to the regulator and sparked a major debate about the cab-rank rule.
According to Jolyon Maugham KC, director of the Good Law Project and one of the signatories, the regulator has decided that he did not breach the BSB Handbook by signing the declaration but it would look again if he followed through on it.
He tweeted: “The regulator has reserved its position on whether, if a barrister *actually* turns down work bringing new fossil fuel infrastructure projects into existence rather than *saying they would* turn it down, this would amount to a breach of the code.”
Mr Maugham suggested that this was “quite a fine distinction”. He explained: “If you say you won’t act you will discourage people from asking you to act with the same result – you don’t have to act – as if you actually turned the work down.
“Importantly, it opens the door to scrutiny of barristers who choose to contribute to the destruction of the planet by bringing new fossil fuel infrastructure projects into existence. Their professional conduct rules entitle them to say, as [Lawyers Are Responsible] signatories have, ‘I will not act’.”
Legal Futures understands that the BSB said barristers who refused actual instructions because of the declaration would be obliged to self-report a potential breach of the Handbook.
Lawyers Are Responsible tweeted that the BSB’s position was “a good reason to ask all lawyers to consider signing our Declaration of Conscience and so, as committed citizens and lawyers, to help tackle #ClimateCrisis”.
Both the Bar Council and the BSB have spoken out in strong support for the cab-rank rule.
In a rare blog on the BSB website recently, on ethics and access to justice, director general Mark Neale questioned “whether barristers can or should substitute their ethical judgement when instructed to represent someone with a properly arguable case in law”.
In this, he was making a distinction from acts of so-called ‘lawfare’ – such as strategic lawsuits against public participation (SLAPPs) to shut down legitimate criticism – where a case was “obviously unarguable either legally or factually”.
He went on: “It is very difficult, it seems to me, to expect the barrister to decide, in these circumstances, whether the ethical implications of the case outweigh the private interest, and rights, of the client to take legal action.
“Indeed, unless the client is indiscreet, it might be very hard for the barrister to know whether the client’s motive is truly to right a perceived wrong or, in reality, to use the legal process to extinguish debate by the threat of expensive legal action.
“If the wider public interest and private interests should be weighed anywhere, it should be in court within a framework of law, not in the privacy of a barrister’s chambers with the implied threat of regulatory action if the barrister chooses the ‘wrong’ option.”
The cab-rank rule does not apply to other parts of the profession and the Law Society’s newly published guidance on the impact of climate change on solicitors made clear that practitioners were not “obliged to provide advice to every prospective client that seeks it” and had “wide discretion” in choosing whether to accept instructions.
Nearly 180 practitioners, academics, students and others have so far signed the Declaration of Conscience, including 19 barristers and one pupil. Among their number is Professor Leslie Thomas KC of Garden Court Chambers, who sits on the BSB’s main board.
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