The Cab Rank Rule
Francis FitzGibbon
‘Sir,’ Samuel Johnson said to Boswell as they toured the Hebrides:
a lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge. Consider, sir; what is the purpose of the courts of justice? It is, that every man may have his cause fairly tried, by men appointed to try causes.
Johnson expresses the rationale for the ‘cab rank rule’ that barristers continue to obey. The Bar’s code of conduct requires us to take any case that is within our
experience, seniority and/or field of practice … irrespective of … the identity of the client … the nature of the case to which the instructions relate … whether the client is paying privately or is publicly funded; and … any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.
The rule guarantees that no one is left without competent legal representation in court, whoever they are. It applies to corporations and individuals equally. Imagine a legal system in which advocates got to choose their clients, rather than the other way round: money would be even more powerful than it is now, and unpopular or poor clients would struggle to get a decent brief. It happened in the 1970s, when Irish people accused of terrorism offences found many of the top criminal barristers oddly unavailable to defend them. Fortunately, a younger generation of barristers took the cab rank rule seriously and stepped in.
Last week a group of 120 solicitors and barristers, including some KCs led by Jolyon Maugham KC, publicly declared that they will not act for fossil fuel businesses and will not prosecute climate protesters who may face jail sentences. They believe that the climate crisis is so great that the cab rank rule must be disapplied. Their declaration is performative and self-fulfilling: their announcement makes it vanishingly unlikely that a fossil fuel company or a protest-prosecuting agency will ever give them a brief.
The underlying question is whether (and if so, when) personal ethics should outweigh the ethical rules of a profession to which one belongs. If the legal process is trusted, so that everyone has their case ‘fairly tried’, then advocates should leave their personal convictions outside the courtroom. If the laws and the process are fair – or fair enough in an imperfect world – then they can be trusted, whatever the advocate may feel about the case.
What if the laws and processes fail? Strategic lawsuits against public participation (SLAPPs), which Peter Geoghegan wrote about recently in the LRB, are weapons used by the corrupt super-rich to prevent the public knowing about them. Oligarchs and others who would prefer us not to find out how they got rich use England’s claimant-friendly libel and privacy laws, abusively, to intimidate whistle-blowers and investigators. Publishers and individual authors are threatened with having to pay unaffordable costs to defend their cases, unless they agree not to publish, or to sanitise, the work in question. The claims may be entirely spurious, but the cost of making them go away can deter publication. The SLAPP tactic lies on the border of what the law permits, and yet it is self-evidently abusive, infringes the right to freedom of speech, and allows super-rich crooks to protect themselves from scrutiny.
Should lawyers, then, refuse to act for SLAPP clients? Solicitors do not apply the cab rank rule to themselves, so they are free to say no. Their regulator has issued a warning, telling them to take ‘reasonable steps to satisfy yourself that a claim is properly arguable before putting it forward, either in correspondence or via an issued claim’. Barristers face disciplinary action if they mislead the court or anyone else, or take points that are not properly arguable, or act without integrity. If we find that another barrister has committed an act of serious professional misconduct, we have a duty to report it to the regulator; failure to do so is itself a disciplinary offence.
The cab rank rule is too valuable a protection for everyone who comes into contact with the law to be sacrificed in morally or politically hard cases. The fault with SLAPPs lies in the law, not the lawyers, because it is the law that makes it possible for the oligarch to try to silence the investigator. The mark of a decent legal system is the recognition of the right of the very worst specimens of humanity or business to a fair trial, and to representation of their choice. If Donald Trump were on trial here, no barrister should refuse to act for him.
‘If lawyers were to undertake no causes till they were sure they were just,’ Dr Johnson went on to say, ‘a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be a very just claim.’
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