Should solicitors be bound by the cab-rank rule?

With the ever-growing demand for legal services it appears that the gap between the legal system and the community is increasing. There are growing concerns regarding high costs, delays in procedures, but more importantly the lack of access to justice. On top of this the law industry is simply seen as lacking ethical and moral standards.

The cab-rank rule is designed to alleviate such concerns. It is a potent rule in that it directly affects the access to justice for those that are marginalised. Contained in Rule 85 of the New South Wales Barristers’ Rules, the cab-rank rule states that no brief can be refused by barristers. Further, Rule 6 of the New South Wales Barristers’ Rules states that barristers must accept briefs to appear regardless of their personal prejudices.

The purpose of the cab-rank rule is to ensure that everyone who is appearing before a court has the choice of court representation regardless of how unpopular a case may be. Exceptions however, do apply. A barrister can refuse a brief if it is not in a field they practice in, if they are not payed a proper fee for it, if there are conflicts of interests involved, and if the barrister is already professionally committed in a different matter.

Notwithstanding the exceptions (which in this writer’s opinion are rightful) overall the cab-rank rule does not allow for the exercise of discretion when choosing briefs.The cab-rank rule is fundamental for the existence of the adversary legal system as it prevents barristers from forming judgment about the case. And it is in this principle where the cab-rank rule is grounded by emphasising independence.

Currently the cab-rank rule only applies to barristers. But the purpose of this post is to examine whether solicitors should be bound by it too. After all, legal professionals regardless of whether they are practicing as barristers or solicitors are here to first and foremost serve the community.

Should the cab-rank rule be extended so as to include solicitors?

In this writer’s opinion, the short answer is yes. Like barristers, solicitors are officers of the law and as such have certain duties to uphold justice. As such, to avoid any confusion I shall jointly refer to both barristers and solicitors simply as lawyers.

There is a general argument that runs something like this: If lawyers have the freedom to only accept cases in which they have an interest in, there is an obvious danger that the marginalised would be denied access to justice. There is no doubt that it would be more pleasant and easier for lawyers to represent only those who they see as likely to succeed in their action rather than to defend a challenging case. Indeed, the cab-rank rule exists in order to provide services that are for the benefit of society as lawyers act for the good of the community as a whole. Lawyers, be they barristers or solicitors are there to maintain social cohesion as guardians of the legal system. And the granting of legal service for all is not only a just thing to do, but it is an essential right.

The cab-rank rule is a reflection of this ideal. It is a service to the community. The lawyer who acts under the cab-rank rule is the promoter of rights and is there to sustain the legal system so as to accommodate those who otherwise would be exploited and misappropriated in the name of the public good by the authority at large.

The obvious retort here would be that just because a lawyer refuses to act in a case does not necessarily mean that there is a denial of access to justice. The client still has alternative choices. This may impose additional costs in finding alternative representation, but in no way would it mean that access is completely denied. Similarly, just because one barrister has refused the brief does not mean that another barrister would do so too. Indeed, one can even choose to represent oneself.

But because matters of the law are often complex it is essential that the accused has secured access to proper representation in court for the risks are simply too high. The right to defence cannot be claimed. While lawyers may object their client’s doings it is vital that they draw a line that cannot be crossed between their own personal opinion and their professional conduct.

Lawyers are not just agents of their clients; they have a duty to the legal system and to society as a whole. Neither barristers nor solicitors, are entirely private actors especially not to the extent that they would be able to exercise discretion when selecting cases. Access to justice is a public good.

Lawyers work within the boundaries of the law; they are guided by the law. As such, lawyers cannot morally filter their clients to determine who can have access to justice. Lawyers hold a duty to provide access to legal justice which they should be aware that it may not always coincide with what they say as being morally accepted.

If the cab-rank rule is abolished, then access to justice would be at the discretion of individual counsel. There would be an unavoidable risk that those who are in most need of protection under the law to go on unrepresented. The legal system would then become nothing but a tool for the exploitation of the marginalised.

Concluding Thoughts

In an address for the 1998 Sir Ninian Stephen Lecture, The Honourable Gordon Samuels AC argued “the sanctity” of the cab-rank rule by comparing it to a doctor’s Hippocratic Oath. Indeed, a reasonable legal system would be one founded on moral principles upon which all would have equal access to the law and this is where the cab-rank rule comes into focus.

The cab-rank rule as a principle is employed to guarantee access to justice for all. Without the cab-rank rule society would be ultimately left without access to justice, while the legal system would not be able to effectively administer justice in accordance to the law. As such, the rule in essence is essential to the progress of society.

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