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Bar vents fury over LSB’s cab rank report

Report shows 'hostility to the Bar and sneers at its ethical pretensions'

27 March 2013

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The Bar Council and Bar Standards Board have hit out over a report commissioned by the LSB which suggested that the cab rank rule should be abolished.

Professors John Flood and Morten Hviid said in their report, published in January this year, that there was no justification for the rule in the modern legal services market.

The Bar Council said yesterday that a freedom of information request showed that the Flood report cost £21,367.

In a paper for the Bar Council, Sir Sydney Kentridge QC (pictured), one of the country's leading barristers, said of the professors: "They do not see the Bar as an honourable profession whose members generally obey the ethical rules of their profession, and who do not seek to evade them.

"Indeed, throughout the report one finds not merely hostility to the rule but hostility to the Bar and sneers at its ethical pretensions.

"One finds also far-reaching conclusions based on selective quotation, flimsy evidence or no evidence at all very far from what one would expect from senior academics doing serious research."

In a further response to the Flood report for the Bar Standards Board, Michael McClaren QC, Craig Ulyatt and Christopher Knowles strongly defended the cab rank rule, saying it was "still effective in achieving its goal of helping to ensure that a client can secure representation by counsel of their choice. There is no real or substantial downside to the rule.

In their report for the BSB, the barristers said the Flood reports conclusions were "unjustified and incorrect, the report suffered from a number of fundamental flaws, and was full of basic errors.

"Among them were stating that the India has no cab rank rule, when it did, and that the self-employed Bar grew more slowly than the rest of the Bar, when statistics showed that both grew at about the same rate."

The BSB report concluded that even when read in isolation, the Flood report provided a poor basis for abolition of the rule, but "when in context and subjected to close analysis, it provides no basis whatever for the abolition of the rule."

Giving evidence to the Commons justice committee last week, LSB chairman David Edmonds, said he had no objection to the "principle of the cab rank rule", nor did his board.

Cab rank 'worth a conversation'

However, he said the current wording, which was four pages long, was "full of conditions whereby barristers don’t have to accept the instructions they are given.

"There’s a wonderful one which says ‘where a barrister has other substantial reasons for so doing’."

Edmonds said that where a rule said "actually you don’t have to accept the instructions if the person is on legal aid or for a variety of other circumstances set out in the four pages", it was "at least worth a conversation and that’s what we’re doing".

He went on: "Words could have been chosen better by the research term and ourselves but the debate is fascinating and goes to the heart of what we do."

Edmonds said a "very simple statement", saying that people had the right to be defended and barristers under an obligation to accept cases, was all that was needed.

He suggested he could write the rule in "five or six sentences" rather than "four pages of tightly knit typescript".

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