Cab Rank Rule Redux....

Since the Legal Services Board published our report on the Cab Rank Rule on 22 January we've had many comments coming in on the discussion boards. They are not all negative, though many are.

I wanted to give some of the flavour of what is coming our way. We expected it of course. The first article to appear was in the Law Society Gazette (the solicitors' journal not barristers') which has garnered many comments. I have tried replying to a few. Catherine Baksi gave a good summary of the papers. Here are some of the comments:

The latest idiocy

Submitted by Interested observer on Tue, 22/01/2013 - 15:01.

The fact that a fundamental principle is not understood by the market place is no reason for abolishing it.

This is a sensible step

Submitted by Disinterested observer on Tue, 22/01/2013 - 15:07.

This is a sensible step forward. Most other countries do not have this silly rule. Indeed, some other countries view this rule as entirely unethical. This will level the playing field and allow people to receive better representation, and allow lawyers to openly restrict themselves to cases they actually take.

There is no point in having a rule that is not enforced, unenforceable and not generally supported merely because a minority does.

And what is to happen the

Submitted by Andrew on Tue, 22/01/2013 - 16:18.

And what is to happen the first time a Defendant accused of some really nasty offence - Huntley, or the man who killed Millie Dowler - cannot find representation because every lawyer approached reckons it will cost more work than it is worth?

The defendants accused of

Submitted by Anonymous on Tue, 22/01/2013 - 16:34.

The defendants accused of really nasty offences that are media worthy will not have a problem getting representation because that is exactly the kind of high-level exposure that criminal barristers want. Such exposure is not only fun to have, but also increases business.

Working around the Cab Rank

Submitted by Tim Child on Tue, 22/01/2013 - 17:27.

I have never had a barrister outright refuse a case, and as a matter of principle I would only ever send instructions/brief to a barrister who I would expect to take the case unless given very specific instructions by my client as to who he/she/it wishes to use.

I have, however, had an experience where the fee demanded by my client's chosen barrister was deliberately priced so high that my client couldn't possibly afford it. The clerk was absolutely open about it - saying that this eminent barrister regularly advised the other party to the dispute and, while on this occasion there was as yet no conflict, he would need a substantial fee to justify subsequently having to turn away the other work that he expected to be offered.

In other words, not quite "No thanks, don't fancy your client.", but as near as dammit.

Modern academia

Submitted by faithless on Wed, 23/01/2013 - 09:29.

Yes, this is what we expect from the half-educated half-wits who become professors nowadays. "The rule is imperfect, so it must obviously be abolished."

Might as well abandon the whole of criminal law, then, since that doesn't punish let alone convict a significant proportion of perpetrators.

What might happen if the rule was abolished altogether has been recently illustrated in India, where the Bar has rushed to announce that it will have nothing to do with defending those beyond-the-pale men charged with the rape and murder of the student on the bus. After all, why imperil your career or endanger your family for fear of reprisals against your representation of such obviously unworthy objects of legal attention?

Since then we had an article by the "Chief Officers' Network" which concluded,

So, there it is, then. More jobs for the boys: a consultation that means that there will be more time and money spent.

So let's save both: listen very carefully.

THE CAB RANK RULE DOES NOT WORK. IT HAS NOT WORKED FOR AT LEAST 25 YEARS. SCRAP IT. AND DON'T SPEND A FORTUNE DECIDING WHETHER TO REPLACE IT AND IF SO WITH WHAT. IT'S A FREE MARKET, IT OPERATES LIKE A FREE MARKET AND HAS DONE SO WITH SUCCESS FOR A LONG TIME. REMOVE THE FAKE RESPECTABILITY AND LEAVE IT ALONE.

And next time you want a proper opinion, ask a lawyer. Hell, ask me: I'll do it in a fraction of the time, for a fraction of the cost.

One of the best write ups came from Dan Bindman at Legal Futures. No comments there but it had been tweeted extensively.

We've thrown the stone in the pond, let's see where the ripples end up. The Bar has begun but as the Law Gazette said, 

Chair of the Bar Standards Board Baroness Ruth Deech said: ‘We will analyse the report with interest but we are clear that removing this fundamental principle would send out a dangerous message.

‘The cab rank rule protects barristers who take unpopular causes and reassures the public that they are entitled to representation even if their case is controversial in nature.

‘The rule has served the public and the standing of British law well for centuries we have no evidence that it does any harm.’

Cab Rank Rule Redux....

Do We Need a Cab Rank Rule for Barristers?

Thanks to loupiote

I've been working in India recently on the Globalization, Lawyers and Emerging Economies project (GLEE). So I got used to travelling around in autorickshaws--cheap, cheeful and extremely plentiful. 

With this dubious intro I change the topic around to the Bar's cab rank rule which essentially says barristers shouldn't refuse clients. I'm not sure, however, if barristers are cheap, cheerful and extremely plentiful. In order to find out more, the Legal Services Board commissioned me and Morten Hviid of UEA to research the cab rank rule.

Our report is published today and you can download it here. The LSB is inviting comments on whether the rule should be retained, removed, or altered. Here is the LSB summary:

Cab Rank Rule Research Summary

Why this?  Why now?

In May 2012 the LSB commissioned Prof. John Flood (University of Westminster) and Prof. Morton Hvvid (University of East Anglia) to carry out a literature review analysing the impact on the market of paragraphs 601-610 of the of the Bar Standards Board’s (BSB) code, otherwise known as the ‘cab rank rule’. The LSB published The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market on 22 January 2013.

Since at least the 17^th Century it has been an important principle for the Bar that everyone who might benefit from having representation should have access to a suitable barrister.  More recently this desire to ensure access to justice, of which representation is arguably a crucial element, was enshrined with the Legal Services Act 2007 (“the Act”) as one of the eight regulatory objectives.

However, while the formal cab rank rule is clearly aimed at ensuring access to justice, it might equally be argued that its requirement for each individual barrister to offer services to all, could act as a barrier to barristers looking to specialise.  As far back as 1776, when Adam Smith’s The Wealth of Nations was published, economists have been aware of the wider economic benefits specialisation can deliver for an efficient, competitive market.   Thus the cab rank rule couldpotentially both undermine its own aim to improve access to justice (by reducing opportunities for specialisation and so the provision of niche services) and also damage other regulatory objectives, such as to promote competition.

While paragraphs 601-602 of the BSB’s code sets out the core principles of the cab rank rule, paragraphs 603-607 outline a series of exemptions and exceptions to the rule, perhaps recognising that its absolute status is less relevant in 2013. The fact that so much of legal aid work, where access to justice may be thought paramount, is exempt serves only to highlight this tension between principle and rule.

In practice therefore the impact of the rule on the regulatory objectives is complex, and the LSB believed, worthy of closer analysis.

A further reason for undertaking this study now is the desire of the BSB, in the context of the Act, to move from a regulatory framework based on highly elaborated rules to one more closely aligned with the outcomes set out within the Act.  This itself raises a number of questions for the cab rank rule.  Could it be reframed as a principle?  What impact does the rule currently have?  What would happen in the absence of the rule altogether?  This research paper considers these issues and more through an analysis of the available literature, supplemented by interviews with the profession.

The findings

The report found no evidence of the rule being actively monitored or enforced by the regulator. In terms of impact, it could not be shown that it ensured representation. There was little evidence that it was understood within the market:  indeed specialisation by some Chambers arguably demonstrated that the rule was regularly breached.

That is not to say that the principle itself of representation for all was not followed in spirit by the profession, but just that is it not clear whether the desire to offer representation is driven as much or more by the professional principle or by economic calculations.  It certainly would seem that, in England and Wales at least, clients who at one time may have been considered unattractive e.g. terrorists are now, through the wider publicity benefits they might offer, perhaps somewhat more attractive than many other types of client.

In the end the report seeks to probe the future benefits of a rule, which while having significant professional benefits, is limited in its practical application?  The range of exemptions and exclusions, including those barristers offering direct public access, already limit the practical scope of the rule. Whether measured by complaints or disciplinary findings, the authors argue that there is no evidence that the rule is applied beyond a general desired professional principle.

The report concludes that, as the profession moves from a rulebook to a code of principles or outcomes, it would seem appropriate to consider whether the cab rank rule could similarly be moved to a principles basis.  Here the report noted that the New York State Bar Client Rights number 10 provides one possible model:

“You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability.”

If modernised to reflect our national perspective on protected characteristics and supplemented with the additional protections that “you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence” the report provides one basis for the retention and reform of the cab rank rule in line with the strong ethical foundations that underpin the Bar.

The LSB will be interested in hearing the views of stakeholders, both professional and consumer, on the report’s analysis and its suggestions for the way ahead. 

Do We Need a Cab Rank Rule for Barristers?

The Return of "Silk" (Series 2)

(BBC "Silk")

Horace Rumpole relied on the South London crime family, the Timsons, to keep him supplied with adequate draughts of Chateau Embankment, a claret designed to curl your toes.

The return of "Silk" on BBC1 (series 2) introduces us to a new London criminal family, the Farrs, on which Billy, the senior clerk, hopes the future profits of Shoe Lane chambers will rely. But only if their solicitor, the aptly named Mickey Joy, likes the performance of the barristers. By which he doesn't mean their forensic skill but rather their compliance with the larger family concerns.

To say the Farrs are like the Borgias in wickedness is to malign that estimable Florentian family. The Farrs are thugs. Their heavy man, Brendan, pulls out the eyes of his victim. The government having cut legal aid the criminal bar is struggling to keep their horse hair wigs alive. So means to an end....

We see Billy having whisky discussions with Mickey in the local pub. He wants to be the only supplier of barristers to Mickey. And since he's got three barristers on his cases, Billy thinks he's on to a winner if only the barristers play along. But there's the rub.

Enter our dashing new silk (QC), Martha Costello. Working class lass from up north beats posh southern kid, Clive Reader, to the golden prize of Queen's Counsel. (I've already made my views clear on that to the dismay of many barristers.) Martha don't like Mickey because her client, the heavy Brendan, clearly has the IQ of a 5 year old and is being set up by the Farrs to take the fall.

Billy gets Clive to act as her junior in the case. Clive is still smarting from not getting silk and to compensate has bought himself a very powerful Norton motorbike. Clive the posh boy in the Cameron-Osborne mould, is prepared to cut a few ethical corners here and there if it keeps him in well with the clerks.

OK....SPOILER ALERT HERE....

Martha is as naive as Billy is manipulative. Somehow, and you have to suspend disbelief here, she persuades the jury that Brendan, all 6 foot 7 inches and 250 pounds of him, is a hard done by lad. Instructed to remove the victims eyes, nose, ears, tongue and fingers, he only takes out the eyes because he's kind. Then he calls 999 (or 911). Instead of taking the fall, he's acquitted.

You can see what's coming next, can't you? The Farrs are pissed off. So just before Martha is to take her silk victory lap up Middle Temple Lane, Billy gets a call to say that Brendan's eyes, ears, etc have been removed and he's dead.

Martha's heart is in the right place but she's seriously lacking street smarts. I hope her new wig keeps her brain warm.

As much as "Silk" irritates me, I enjoy it. And I classify watching it as work which most people can't do. So I'll be in for the whole series. More to come.

One point: these TV series about barristers are incestuous. In 2000 there was a better TV show called "North Square" about a set of barristers chambers in Leeds. The actor who plays Mickey, Phil Davis, was the senior clerk, Peter, in "North Square" (even more Machiavellian than Billy) and Clive (Rupert Penrys-Jones) was one of the barristers, Alex--again a posh boy.

Both "Silk" and "North Square" were created by the same writer, Peter Moffat, a British playwright.

Then, would you Adam and Eve it, Phil Davis (Mickey/Peter) and Rupert Penrys-Jones (Clive/Alex) both turn up in another TV show called "Whitechapel" (2009) about copycat Jack the Ripper murders where Rupe is the posh, naive, educated CID inspector and Phil is the trustworthy, university of life trained sergeant.

At this rate they'll take over every legal TV show going....Stop!

The Return of "Silk" (Series 2)

Make Love Not War?

While Sacha Baron Cohen assumed the role of Dictator at the Festival Hall yesterday, a group of legal regulators were slugging it out next door. Lord knows what would have happened if both sides met...

Russell-Cooke, a big London law firm, organized a 'debate-seminar-symposium' on Enforcing Regulatory Standards in a Liberalised Market with Lord Neuberger (Master of the Rolls, which means he heads up the civil side of the appeal court), David Edmonds (chairman of the Legal Services Board), John Wotton (president of the Law Society), and Maura McGowan QC (vice-chairman of the Bar).

It was lively. (The hashtag #regstandards on Twitter will give you a flavour of the flow of events.) Lord Neuberger set the tone by chiding the marketization of law and the ever-burgeoning market in regulators. He's talked about this before. Law is something special and the rule of law is central to civilized society. So, are all the changes emanating from the Legal Services Act 2007 good?

David Edmonds met this challenge straight on by stating that outcomes focused regulation (OFR) is the only form of regulation compatible with professional ethics. And that consumers need to be put first--"I fear that I plead guilty to having unremittingly acted in the interests of the consumer." This is in contrast to a speech Neuberger gave in 2010 called "The Tyranny of the Consumer or the Rule of Law." (I know because he quoted from a paper of mine about the brave new world which he didn't like.)

Edmonds' stance is quite simple and not antithetical to Neuberger's own wishes: "In short, I want to see the legal profession adopt the same commitment to consumer care as it does to client care – to embrace modern business ethics alongside those of the profession. They are not mutually exclusive and each reinforces the other." Moreover, lawyers are not the sole possessor of ethical values and "it is demeaning in this debate to imply that non-lawyers are inclined to be less ethical than any other group running a business." (There's more over at Legal Futures.)

I feel that what Edmonds said--and you should read his complete speech--was considered, rational, and not contentious, in the modern world. You wouldn't have thought so from the responses.

First up was the president of the Law Society, John Wotton. He complained that OFR is leading to more detailed regulatory rules and therefore higher costs. But this is the way the front line regulators have interpreted OFR: there's no need for them to take this direction. The Law Society would like less regulation because consumer demand would achieve the same ends. But Wotton recognized that the ABS application process was slow and the Law Society and the SRA need to collaborate more on speeding up that process. Overall, Wotton knows the legal market has changed fundamentally and is subject to forces like globalization. For example, see his speech to the American Bar Association.

Having set out his general view, Wotton then called for ethics to be embedded in legal education. That's not a bad thing perhaps but it isn't the answer to improving behaviours. Secondly, he wanted will writers to be governed by the same rules as ABS. Thus we have pleas for more regulation, not less.

Then it was the Bar's turn. Maura McGowan presented the rule of law as antithetical to the idea of markets. Consumers were not the arbiters, just as Neuberger has asserted. Outcomes were not the defining instances, but it is process that is important. This is where the Bar tries to make a canny move. If you aren't part of the market, you can claim special treatment. Why? Because the Bar has a wider duty to the public and the courts and is beyond markets.

In some ways the Bar has sought and enjoyed the aura of a priesthood. But priests, the clergy and others have always had a necessary and close connection to the market. I always enjoy watching the religious channels on American TV--just incredible performances in the creation of mass adulation. Evangelicals are now the fastest growing religious group in Roman Catholic Latin America, for example.

The Bar thinks OFR inappropriate for itself. The public interest comes first before the consumer interest, which in itself doesn't make any sense.

Moreover, McGowan inveighed against the legal education and training review. It was too much too soon. She accused Edmonds of saying that legal education wasn't fit for purpose. If one reads Edmonds' Upjohn lecture on legal education it doesn't say that: it does deplore the lack of dialogue between education and practice.

We know legal education needs reform. I question whether the legal regulators are the best ones to lead it. After listening to the Law Society and the Bar Council, I'm not optimistic. Well, let's see what they come up with......

I felt both the Law Society and Bar Council wanted to snipe at the Legal Services Board. I don't mind that but as representative bodies of their respective groups they don't seem as clued up about what is happening in the legal services market as they should be. The Bar isn't standing still. See how Riverview Chambers is shaking up the orthodoxy with its fixed fee packages (with a new one for divorce).

It was clear that they really only see from the perspective of the profession, which is too blinkered. They need to become aware of the market and how the market, and its buyers, view them. That was beautifully summarized when someone said, "Consumers don't actually want to buy legal services."

Perhaps the last word should be left to a speaker from the floor who remarked that being complained about to the Legal Ombudsman wasn't a bad thing but actually was a good thing as one could learn what the complaints were telling you and therefore improve. The panel speakers didn't really embrace that one wholeheartedly. No surprises there...

Make Love Not War?

Diversity in the Legal Profession?

(Thanks to Karishma Daswani)

Neil Rose at Legal Futures reports that the Legal Services Board (LSB) is to compel law firms and barristers' chambers to disclose information on diversity, which would encompass:

• age
• disability
• gender
• race
• religion or belief
• sexual orientation
• working patterns
• social mobility

This should come into effect in February 2011. And not before time.

My colleagues Lisa Webley and Liz Duff have been doing research on this, in conjunction with scholars from Leeds, for the LSB. Their report is due shortly and at Westminster we will be holding a seminar on this on 13 October. My guess is that their findings will not make happy reading for the profession.


This is an aspect of the legal profession which has remained under-researched and misunderstood for a long time. Both solicitors and the Bar have been reluctant to provide figures, except in aggregate, on gender and ethnicity. We do know that there are severe distortions in numbers between entry to law school and those in practice.

Lawyers and the legal profession have been good at portraying themselves as meritocratic and having removed the last traces of noblesse oblige. Yet without the statistics how do we know?

Discussion groups on Linked In have been grumbling about "heavy-handed" regulation from the LSB over having to collect and disclose this information. But they have only themselves to blame for not taking the lead and actively seeking to resolve the problems endemic in the profession.

Unfortunately when it comes to change the legal profession is snail-like. And this is one of the reasons the Legal Services Board exists--to overcome the inertia of the profession. Maybe it will begin to get the message, if it's prepared to listen. But....

Diversity in the Legal Profession?

Tesco Law in a Wig and Gown

Are solicitors endangered? James Dunning has an insightful post on this at his blog, An Inside Take from the Outside.

He advances his argument on the basis of the changes made in the regulation of barristers. Dunning says:

Last week though, in my humble opinion, the earth moved as the Bar Standards Board voted to allow barristers

• to work in partnership with other barristers
• to work in partnership with lawyers
• to invest in law firms
• to practice in more than one capacity
• to investigate and collect evidence, take witness statements in civil and criminal case, advise suspects at the police station and conduct correspondence

The Law Society is busy considering the relative merits and demerits of referral fees.  Meanwhile the Bar Council has just voted to allow barristers to steal a sizeable proportion of law firms’ daily sustenance.

I agree with Dunning the earth is moving and solicitors should be checking their earthquake insurance.

565NPCXDCPAW

Tesco Law in a Wig and Gown

Straight There No Detours

Avis Whyte and I have just finished an article derived from the research we did for the Bar Council on direct access to clients. It can be downloaded here.

The Bar has been a referral profession for many years and now it is attempting to reconfigure itself towards direct dealings with clients. This has a serious impact on the manner in which the Bar constitutes itself as a profession.

Our conclusion reads:

Modernity unsettles professional certainties. For four centuries the Bar has enjoyed many privileges (Prest 1986) but there has been a hollowing out of its professional core as its reserved areas have come under threat. The gradual erosion of the referral aspects of barristers’ relationships with solicitors and others exposes barristers to the contingencies of the market in a raw form not usually experienced. The rising intervention of the state into the lawyer-client relationship through the control of the legal aid budget is accelerating these moves. These are moves to bureaucratic control and potential proletarianization (Larson 1977: 232). The Bar is losing its grip on its professional project. Or is it? Muzio and Ackroyd (2008: 49) argue we are not observing the end of professionalism but rather various defensive manoeuvres by professionals to maintain their privileges.

How does the rise in direct access work fit with the changes in the Bar? In part it has to do with what Boon and Levin (2008: 77) described as “The legal services market has a multitude of sites in which different norms proliferate.” Barristers occupy many positions outside traditional private practice. They are in business, government, the Crown Prosecution Service, and even inside solicitors’ firms. And when we add to the mix an increasing diversity of professional members in gender and ethnicity, common cultural values change and may not hold. This is reinforced by the division in work at the Bar between those who largely undertake publicly aided work and those who act for private clients. Barristers paid by the state operate under considerable control in terms of what they can do and what they can charge for their labour. No equivalent constraints fall on private client practitioners: they function within the market. Further controls are imposed by chambers arrangements which are becoming more corporate in focus. Chambers are increasingly specialized in their practice areas. They target potential lateral hires, including groups of practitioners, and establish business targets, all of which compromises the ethic of individuality espoused in the Bar.

Although the fusion of barristers and solicitors is unlikely to happen, the introduction of Legal Disciplinary Partnerships in 2009 has opened up the organization possibility for the conjoining of the two. And when alternative business structures make themselves known, many conventional arrangements might begin to fail. Alternative business structures will seriously affect numbers and structures within the legal profession and increase the employed section of the legal profession. We suggested that up to a thousand law firms could fail in competition with supermarkets and other legal service providers. Barristers too will be affected.

With these eventualities direct access work grants the possibility of holding onto traditional values and procedures. Prest (1986) is clear that the settling of the referral structure of the Bar did not come into being until the 19^th century, so that an earlier paradigm of professionalism for the Bar encompassed direct relations with clients. Attorneys and solicitors stepped in when geography made it difficult for clients. Direct access recaptures these pre-modern ideals of working. But perhaps of more significance is that barristers can situate themselves more centrally in the market through doing direct access work. Their potential for control over their work and professional relationships is enhanced.

Straight There No Detours