WALES/ENGLAND – Legal Services Board questions the benefits of the ‘cab rank rule’

Responses of stakeholders sought by the LSB

The Legal Services Board has published a report by Professor John Flood (University of Westminster) and Professor Morton Hvvid (University of East Anglia) 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 report is entitledThe Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market.

The report was commissioned because of concerns that the cab rank rule could potentially 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 set out the core principles of the cab rank rule, paragraphs 603-607 outline a series of exemptions and exceptions to the rule, perhaps, believes the LSB, 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.

A further reason for undertaking this study now is the desire of the BSB, in the context of the Legal Services Act 2007, 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 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, concludes the report, 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.

The report can be read here.