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)

Time to Cut the Silken Thread

(thanks to swatman67)

Here is the op-ed piece I've published in The Lawyer today on the end of Queen's Counsel.

Time to cut the silken thread
9 April 2012

The QC system should be done away with, and the legal services market brought into the 21st century
It’s time we got rid of the Queen’s Counsel (QC). It is archaic, woolly in definition, and the only state-sanctioned ’quality’ mark I can think of.

These letters patent are issued by the Queen. We live in an age of transparency and accountability, and neither the process of selecting nor monitoring QCs is fit for this purpose. By all means have a distinction that speaks to expertise, but something as vague as expert at ’advocacy’ is woefully insufficient.

The selection panel is a mix of the great and the good, with ’lay’ members taking up half the positions (are barristers the only professionals that seek to liken themselves to the clergy by their use of the term ’lay’?). References are taken from the judiciary, practitioners and clients, but the judiciary still plays the biggest role behind the scenes.

There are other peculiarities. The cases that the panel wants candidates to write about should come from the previous two years of practice, not earlier. This is not like the Nobel Prize, where your whole body of work is scrutinised. No, the criterion is your excellence at the time of application. If there have been complaints about applicants they only have to disclose if they have admitted liability. Again, a strange benefit to those who never apologise or explain.

The most peculiar part is that it is a reward for advocacy that privileges one part of the legal profession over all others. Take the 2011 competition: out of more than 200 successful applicants two were solicitors and none were legal executives. If you take the legal profession as a whole, advocacy is a minority sport because most of the work handled is transactional. So if prizes are to be awarded to lawyers, why not all of them?

Moreover, the results show that it is the same old story - if you are a white, male barrister in civil practice your chances are much greater than anyone else’s.

So, in the new outcomes-focused legal world is there still a place for this archaic institution? The answer is no. It raises costs, often leads to doubling of resources on cases, but worst of all does not signify any measurable quality. It’s not as if QCs have to go in for a legal MOT every few years to see if they are up to the job. The Legal Services Consumer Panel has suggested incompetent QCs should lose the title.

Bizarrely, during the time the raison d’être of the silk was being debated, some arguing in its support said that its loss would raise costs and that the junior bar would have no standard of propriety to aspire to. Perhaps the most outlandish argument was that barristers are quasi-public servants and that the QC had a quasi-judicial role. Judicial? Well, this was said by a QC.

If we want to reward specialisation and expertise, let’s do it on a profession-wide basis, without the involvement of the state. Let’s make it open to all. Let’s drop the reference to the crown. If we need something, we could use Senior Counsel, but not if it merely replicates the QC.

Let’s make it a testable process, with outcomes that require continuing sanction. Let’s bring the legal services market and its providers fully into the 21st century.

----------------------------------------------

If you google "queens counsel" you also get this little chap. His name is "Queen's Counsel z Vejminku, golden boy". If you want a little cocker spaniel like him, his family are in the Czech Republic.

I suppose there is a similarity between his ears and the QC's wig......

Time to Cut the Silken Thread

Mea COLPa and the Lawyer's Gone Bust...

(thank you)

Two separate items in Legal Futures raise concerns about lawyers and their relationships within their own firms and with their clients. They tell different sides of the same story, from inside and outside the law firm.

The first is that many firms haven't begun to train their staff in risk and compliance for when outcomes focussed regulation begins October. Yes, three months.

The second is that there has been a steep rise in compensation claims against solicitors. The figure is now over £200 million.

New figures from the Solicitors Regulation Authority (SRA) said the value of the 1,952 open claims against the Solicitors Compensation Fund at the end of June was £205m, £76m more than at the same time in 2010, even though there were almost 1,000 more claims open then.

I wrote before that law firms are confused and perplexed by who should be their compliance officer for legal practice and what that officer ought to be doing. By October 2012 the COLP has to submit a report on the preceding year. That means having all the reporting and accounting systems in place now, or by October at the latest.

If law firms can't get their compliance act together then how are they going to respond to client complaints? How will they catch dishonest lawyers? Note that law firms have also to appoint a COFA (compliance officer for finance and administration) too. If these processes are fully functioning will clients have confidence?

Perhaps, instead of trying to kill off Rick Kordowski's Solicitors from Hell, the Law Society and Bar Council should be prompting their members to start thinking and acting to ensure clients are satisfied, well-served, and confident in the legal profession.

Adam Sampson, the Legal Ombudsman, wrote recently that customer service will be the key criterion

What is important here is the introduction of the concept of customer service as a basic standard against which barristerial actions are to be judged.  I know from my own experience that the vast majority of barristers take their responsibility to their client as their central, driving motivation.  However, there remain a small number of the profession who see customer service as something which is wholly the responsibility of the solicitor and therefore not a matter with which they need to concern themselves.  It is this small group who may struggle to adjust to the new reality.

Barristers, it seems, have not yet adjusted to a non-adversarial complaints system where they can "prove" their innocence. That will be only one part of the process.

Lawyers must realize that the new world of legal services won't wait for them to catch up from the 19th century to the 21st. We know other suppliers will jump in and begin to mop up. It might be Coop or it might be Quality Solicitors, but it won't be the lawyers who stand there with question marks over their heads. Whoever works out that consistently good service across all fronts to all clients improves business will win.

Mea COLPa and the Lawyer's Gone Bust...

British Legal Drama, Barristers and Those Stupid Wigs...

The BBC is running a new legal drama called Silk. I watched my first episode tonight and the verdict: dire.

It is plodding, panders to prejudice and convention, and looks tired. Something goes wrong when the Brits do legal drama. OK, that's a sweeping generalization, but it's not too far wrong. And this show makes it seem so even more.

If you want to see good ones then you have to go back to North Square and Rumpole. Admittedly the last is a joke yet it's a good joke and much missed. North Square, perhaps because it was based in Leeds, did have a grittiness about. It's real secret, however, was the clerk, McLeish.

In Silk all the stock characters are there. The ambitious one, the driven woman who has doubts about her femininity, the insecure one, and the hard-bitten trainee who will get the job at any price. Then they plod to the courts and do their schtick. In this episode every member of chambers, including the prosecutor, was present in court--extremely incestuous.

Rather like North Square the only character that interests me is the barrister's clerk. He's usually the guy (rarely a woman: in fact never on TV) in the sharp suit (better tailor than his barristers) accompanied by a quasi-Cockney accent and who smokes. No one else does, of course. He's the one who gets the work and does the necessary dirty deeds.

In this episode a black female barrister, Kate, accuses the clerk, Billy (always called by their first names), of not wanting to persuade solicitors to pay her fees. She catches him in the hallway and demands he gets her aged fee of £9000. He claims to have tried, but she won't have it and says he is pandering to the solicitors in order to get higher paying work for senior barristers at her expense. In the programme it's clearly true.

Later we see the first junior clerk--also black--reporting to Kate that he has got at least half of her aged fee. Gosh, lines are drawn between the avant-garde and the oldies in chambers. Does this mean revolution is in the wind? Would they ever get rid of those stupid horse hair wigs? The Bar has survived for over 500 years so far so no breath-holding, please.

Yes, we see soft-hearted lawyers trying their damnedest for their clients and hardened types who say just get on with it...lose some, win some... Yes, every bloody cliche in the book (oops, that's one) is thrown at us. And apparently there is QC who is the legal adviser to the show. I would advise her to have her name removed quickly or do an Alan Smithee.

Despite all that, I'm probably going to watch it again. I'm a sucker for these shows, but at least I can write it off as work (yes, I was doing my research last night...) which is more than you can.

British Legal Drama, Barristers and Those Stupid Wigs...

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