Introduction
The name originates from the rule acting in defense of London citizens’ rights to use taxi services regardless of the distance they needed to travel. Without the rule, cab drivers used to avoid the customers who requested a long route. The rule was set to protect the people of the city from such speculations. In the legal profession, the same rule ensures that legal services are provided to every individual in need of them regardless of their identity, case specifics, payment details, beliefs, regulation, and so forth. In this paper, the cab rank rule will be examined and analyzed from the standpoint of the issues it presents, what is known about them in academic circles, and what possible solutions could be proposed.
Issues with Cab Rank Rule
The main issue with the cab rank rule is connected with adherence of lawyers to it. Currently, the mechanics of the provision of legal services are regulated by the free market in many countries such as the U.S., UK, and the rest of Europe. Clients have the right to choose by whom they would like to be represented. Lawyers may also consider defending the clients they choose to be more or less profitable from the financial or image-making standpoint.
Legal agencies range by the price and quality of their services, making some of them unaffordable for the general public. In practice, it becomes a challenge to establish access to legal services for every citizen. In many countries, every suspect has the right for a lawyer provided to them by the government in case of need, yet well-established law firms will unlikely represent a person if that case is deemed undesirable for their image.
The issue of enforcement also stems from the problem of adherence as it is rather difficult to punish a lawyer who overlooks the cab rank rule. It presents plenty of opportunities to avoid unwanted clients due to the exemptions guaranteed by paragraph 602 of the UK Barristers Code of Conduct (Bar Standards Board 2015). These exemptions relieve them of taking a case provided the remuneration for it does not correlate with the difficulty. In addition, barristers are exempt from representing clients on the same case which qualifies as a conflict of interest. Thus, the question of the cab rank rule’s practical use arises due to a variety of legal ways to avoid following it.
In light of the fact that the rule aims to support the right of every person to be eligible for representation, Fountain Court Chambers (McLaren, Ulyatt & Knowles 2013) adds that the choice of a lawyer should also be respected within the cab rank rule. Such a choice, however, is rather difficult to support in the real world because barristers’ fees may not always be affordable. The problem with the lawyer appointed by the state to those cannot afford the legal representative of their choice is the biasness of such representation. In cases when the state becomes the opponent, the independence of the legal representative might become vital. Therefore, making the choice of a lawyer the right of every citizen might be challenging from the standpoint of budgetary costs.
The problem of the rule is also in its limited scope. According to the Bar Standards Board (2018), the rule covers only barristers of whom there are around 16 thousand people, while there are 130 thousand solicitors not bound by the rule. Higgins (2017) also points out that even for barristers, there is a plethora of exemptions that grant them an opportunity to avoid representing unwanted clients. He adds that adequate representation could be arranged only through the cooperation of a solicitor and a barrister, which further diminishes the value of the rule in this regard (Higgins 2017). Therefore, a corrective action seems to be required to equalize the cab rank rule.
The idea behind the rule is understandable and honorable from the perspective of ethics. Similar to the manner in which the constitution guarantees the citizens of the country basic rights and freedoms, the cab rank rule ensures people’s right to have a law expert to represent their interests in court. The difficulty of fulfilling this ethical duty is primarily in the market mechanisms that dictate the tendencies among law firms (Taylor v. Lawrence 2002).
The execution of the rule is also undermined by the fact that in the UK, it does not apply to solicitors who often prefer more wealthy clients and, therefore, have a choice of whom to represent. According to Higgins (2017), the size of the financial help issued by the government in support of the cab rank rule has dwindled. This fact has contributed to the increase in the number of people unable to afford legal representation. All of this speaks further to the gap in the practical implementation of the rule. The consequences of such a situation lead to an increase in the number of ill-advised court decisions and other consequences. This implicit denial of justice produces a long-term effect on society, lowering trust among members of the public in the justice system.
Arguments in Favor of the Cab Rank Rule
There are also proponents of the cab rank rule who argue that its relevance did not subside. McLaren, Ulyatt, and Knowles (2013) dispute the above-mentioned claim of the arising financial difficulties on the grounds that abolition of the rule would still not achieve universal and unrestricted access to justice. They argue that the cab rule does not serve the purpose of encouraging barristers to work on cases regardless of fees. The problem lies not within the framework of the rule itself. It is rather an issue of a state and its ability to provide financial aid to people in need of representation.
There has also been an argument over the issue that the rule rarely triggers disciplinary fines. Certain academics believe that this thesis supports the claim that the rule is practically useless (Flood & Hviid 2013). McLaren, Ulyatt, and Knowles (2013) note, however, that the absence of disciplinary fines in regard to the cab rank rule may simultaneously indicate the flawlessness of its performance.
Still, if there is no objective measurement of its performance, there is a reason to doubt its relevance. However, it may be argued that the practical use of the cab rank rule extends not only to clients but also to lawyers themselves. According to Lord Neuberger (2013), this rule grants a representative protection from the reputational damage that may be inflicted on them by the media, state or the client. By having to undertake any legal matter within his or her proficiency, the layer is protected from the moral and ethical issues raised, for instance, by the fact of representing a terrorist or a serial killer.
One more critical issue that suggests that this rule is relevant is the fact that it prevents discrimination of the client on the basis of his or her identity, race, sexual orientation, and so on (Bar Standards Board 2012). In this manner, the cab rank rule forms the basis of professional conduct and requires lawyers to be respectful of their clients’ differences and act as experts in their field (Lee v. Ashers Baking Co Ltd & Ors 2015). Yet the rightfulness of this principle is undermined by the fact that it does not apply to all lawyers in the field because solicitors are not bound by the cab rank rule (Higgins 2017). There is also a problem of overlapping that concerns other laws such as the Equality Act of 2010 protecting individuals from discrimination.
Opportunities for the Cab Rank Rule
Should the cab rank rule be reworked, it can become a more suitable tool for defending the rights of both clients and lawyers. In its present state, it does not provide a universal service. As economic reasons are one of the most frequent barriers towards fair representation and access to justice, the rule should be more focused to address this issue. In light of this, Higgins (2017) suggests rebooting the rule as a universal obligation of service (UOS). Such an obligation should be applied to both barristers and solicitors and imply an hourly pro bono service for unpopular or poor clients. A small portion of their billed hours should be allocated to the cases that require urgent legal advice.
Such an initiative may be substituted with the requirement to pay a small percentage of their earnings to fund this service with both options available to lawyers. An initiative to update the cab rank rule is also supported by Flood and Hviid (2013) who agree that, in its current version, the rule does not withstand the challenges of the modern world. Yet, they propose only that the rule should be extended to solicitors as well.
It appears that the radical change will require a substantial amount of negotiation and collaboration between the government and the Bar Standards Board. If implemented, the UOS could indeed provide universal access to justice. However, the first reaction of the Bar would likely be negative as they tend to maintain the status quo in regard to the rule (McLaren, Ulyatt & Knowles 2013).
Complete elimination of the rule was also suggested as an option that could end the standing debate. Flood and Hviid (2013) argue that since the rule produces no effect whatsoever, it should be abolished as an anachronism. Indeed, given the adoption of Equality Act 2010, which is rather inclusive and well-round in its nature, there seems to be no need for special rules for barristers that provide so many exceptions that the effect is barely visible.
Conclusion
The cab rank rule is a controversial issue that requires action due to the fact that it does not properly address the problem of access to justice. The main downsides of the rule include its limited scope, poor adherence and enforceability, and its overlapping with other laws. Among the strong sides are the protection of lawyers from reputational damage and the client from discrimination. The options to address the issue of the cab rank rule are through its complete abolition, the maintenance of status quo, the extension to solicitors, and reworking it into UOS.
Reference List
Bar Standards Board 2012, Code of conduct. Web.
Bar Standards Board 2015, Current guidance. Web.
Bar Standards Board 2018, Practicing barrister statistics. Web.
Flood, J & Hviid, M 2013, ‘The cab rank rule: its meaning and purpose in the new legal services market,’ University of Westminster School of Law, vol. 13, no. 1, pp. 1-48.
Higgins, A 2017, ‘Rebooting the cab rank rule as a limited universal service obligation,’ Legal Ethics, vol. 20, no. 2, pp. 201-223.
Lee v. Ashers Baking Co Ltd & Ors (2015) NICty 2.
Neuberger 2013, Tomorrow’s lawyers today – today’s lawyers tomorrow. Web.
McLaren, M, Ulyatt, C, & Knowles, C 2013, The cab rank rule: a fresh view. Web.
Taylor v. Lawrence (2002) EWCA Civ 90.