The Death of the Cab Rank Rule: A Sheep in Wolf’s Clothing?

With the recent announcement from the Bar Council about the change in the new terms of appointment for Counsel, Tom Smith of Plymouth Law School looks at the cab-rank rule.

This week, eminent academics John Flood and Morten Hviid may have signalled the death knell for the ‘Cab Rank’ rule - the age-old law of professional detachment applicable to barristers in England and Wales, compelling them to accept any client requiring their services. Flood and Hviid – leading scholars on professional ethics – make several valid points; but a point of criticism might be the tone of the argument, rather than its substance.

In their report for the Legal Services Board, they describe the long-standing rule as an anachronism which lacks ‘teeth’ in practice. They characterise it as an impractical, unenforced antiquity, with an over-exagerrated relevance perpetuated by the Bar. They conclude by recommending that it should be considered a ‘principle’ rather than a ‘rule’. I agree with the final conclusion, but with perhaps a different perspective.

In many ways, Flood and Hviid have dragged this particular skeleton out of the closet. Practitioners and academics alike have been aware for some years that the concept of compulsory representation is a fallacy. In the context of criminal defence, the almost universal exclusion of legal aid from the ‘rule’ (due to its categorisation as insufficient remuneration) makes a mockery of the mechanism. This has led to what has been descibred as ‘legal advice deserts’ in some areas.

But where the ‘rule’ falls down, the ‘principle’ stands up. The idea that no man or woman should be turned away on the basis that they or their cause are immoral, deviant or objectionable is essential. It is the foundation block of access to justice, most particularly in criminal defence. This principle has been inculcated in the culture of the Bar for hundreds of years; there is no evidence to suggest that barristers deviate from it on the basis of moral objections. Indeed, in a piece of empirical work I conducted in 2009, every barrister was adamant about their duty to accept a client however much they disliked their character or cause.

As Flood and Hviid point out, the principle is ‘laudable’. I would go further and say that it should always be vigorously defended. It is an anchor ensuring that the culture of legal representation never drifts too far from the essential notion that all must be able to exercise their legal rights. The principle, as opposed to the rule, has such strong resonance in the field of criminal defence that solicitors – not bound in any way to follow the ‘Cab Rank’ system – generally abide by it, opting to accept all comers. This, again, was something I encountered during the aforementioned empirical study.

So, one might argue that the ‘rule’ (a binding covenant) is no longer defensible, particularly in the post-ABS environment. But the ‘principle’ (a normative value) remains essential and healthy, particularly in circles where it is needed most. Indeed, in a world where lawyers and non-lawyers can now work together closely in a business setting, it seems more important than ever to ensure that the ethics of legal representation are protected, sustained and even prosthelytised; after all, one must ask who will choose the clients in an ABS – the lawyers or the non-lawyers? And what factors will drive the decision-making? Barristers don’t appear to have fully embraced the opportunities of ABS yet, but it is an inevitable destination and these bridges will have to be crossed.

It seems sensible and realistic then to abandon the pretense of a ‘rule’ and accept the concept of a ‘principle’: the ‘Cab Rank’ rule is a sheep in wolf’s clothing, and should give it up. But Flood and Hviid’s report lacks the passionate conviction that the ‘cab rank’ principle deserves. To use a metaphor, rather than accepting it as simply the out-dated, mutterings of the old man in the corner, it should be embraced as the sage advice of an elder statesman – no longer followed rigidly but always consulted and respected as the voice of reason and experience.