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....

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)

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...

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