Monday, January 28, 2013

A case against the Cab-Rank Rule

By Gary Webber, Barrister

The "cab-rank" rule is a restriction on freedom. The solicitor may choose any barrister he likes to represent the client. The barrister has no choice. If he practises in the area concerned he must accept the brief so long as a proper fee is to be paid. At its most extreme, this rule requires a black or Jewish barrister to act for a Nazi. In most cases a barrister can be expected to act with professional detachment but in such circumstances he or she is being asked to be less than human. More mundanely, the practical effect is to require the barrister to accept work from a solicitor for whom, for a variety of possible reasons, he or she just does not wish to work.

The cab-rank rule has an honourable tradition. The Bar has always been a small profession; there are still only 10,000 of us in independent practice. It is important to ensure that everyone has access to a specialist advocate. But that justification has now gone. There is an ever-increasing number of solicitor advocates with rights of audience in the higher courts. Further, two months ago, without any fanfare, the Bar Council, as a consequence of the Access to Justice Act 1999, changed its rules so that employed barristers may now appear in the higher courts. Thus a barrister employed by a commercial organisation can dust off his wig and gown, which he has not used since he was called to the Bar, and appear personally before a High Court judge on his employer's behalf. Crucially, barristers employed by firms of solicitors also now have unrestricted rights of audience.
These are changes that have not yet sunk in. In the criminal field, the Criminal Defence Service is on its way. The profession may not like it but it is going to happen. Presumably, that service will not be able to pick and choose between clients. Thus the public will shortly have a far wider range of advocates to choose from than has traditionally been the case.
In those circumstances, what is the justification for the cab-rank rule? There is certainly no public relations argument in favour of it. Indeed, most members of the public think it immoral: "How can you possibly represent someone you know to be guilty?" In the absence of some good public policy reason, why retain it?
The cab-rank rule is not the only possible casualty of the expansion in rights of audience to those other than barristers in independent practice. Government ministers have started to talk about the profession accepting multi-discliplinary partnerships. Indeed, why not, if we do not need to worry about the numbers of advocates available to the public?
Perhaps a more likely but no less radical proposal is that of partnership between barristers. Not all chambers will think it a good idea, particularly the highly specialist sets where members of the same set frequently appear against each other. Many members of the Bar are also attracted by the personal independence that goes with the chambers set-up. Indeed, that is why so many of us chose to be barristers in the first place.
However, some may well consider partnership an advantage. Consider a set of chambers with 40 members. If only eight were partners, with the rest employed, it would be much easier to control the direction of the chambers. Juniors would not be taken on for life after only a year of pupillage or less. They could be employed at first and, if everything worked out, they could in time also become partners. If chambers do not start to employ young barristers, it is quite likely that increasing numbers of them will begin their careers in solicitors' offices, where they now have equal rights of audience.
Many members of the profession will regret the passing of an era where an independent Bar had sole rights of audience in the higher courts. But, like it or not, those days have gone. We should now go through our code of conduct and abandon every restriction that is based on the assumption that we retain our ancient rights.
The Bar has changed a lot in recent years. The number of barristers in private practice will no doubt be smaller in future but as long as we continue to modernise an independent Bar will survive. There will always be room for a fearless, specialist advice and advocacy service with low overheads that can be consulted on a referral basis.
  • The author is a barrister at 33 Bedford Row.

Read more: Article | The 'cab-rank' rule can no longer be justified, says Gary Webber
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