Cab rank principle 'could extend to ABSs'

The cab rank rule, which obliges barristers to accept any brief or instructions, has no justification in the “modern, globalised legal services market”, a report for the Legal Services Board has concluded.

Professors John Flood (pictured) and Morten Hviid, said in the report: “We are not convinced that it even is a proper rule. It seems at best a statement of principle masquerading as a rule in order to make it appear to have more teeth than it does.

“While the Bar is captivated by the rule and has promoted it as a shibboleth, we have no evidence as to its efficacy nor that it is understood within the legal marketplace.

“The BSB has no disciplinary findings based on the rule. The Legal Ombudsman has received no complaints based on the rule. No one appears to know of any infractions of the rule. Indeed we have no means of knowing if it has been breached.”

The professors said the rule could be left in place, abolished as “an anachronism in the modern legal services market” or, “as a principle and not a rule” should be applied to all providers of legal services, including ABSs.

They praised the statement of client rights promulgated by the New York State Bar, which obliges lawyers not to refuse representation “on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability”.

Flood and Hviid said this rule could apply to all lawyers and did not need the ‘exceptions and exemptions’ to the current rule, which served only to “confound and confuse clients”.

They went on: “It would be practicable, within the English context, to augment the rule by including references to type of client, the nature of the case/crime or the defence required.

“These would deal with the original aspects – unpopularity of clients and heinous nature of crimes – of the cab rank rule that have since been overshadowed by arguments over funding.

“Lawyers would not be unrealistically barred from choosing clients, but the decision would have to be reasoned, within the prescribed limits and ultimately testable.”

The professors added: “We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalized legal services market. By all means the Bar can espouse it as a laudable principle, but it should not pretend that the rule is significant or efficacious.”