The barristers' cab rank rule is 'redundant' and should be abolished, according to a report published today by the Legal Services Board.
Authors Professor John Flood and Professor Morten Hviid suggest that the rule is 'regularly breached', and serves 'no clear purpose'. They claim its abolition would have no effect on the practice of law or the delivery of legal services.
The report describes the rule, which obliges a barrister to accept any work they are available for and competent to do, as being the 'defining feature' of the English bar for several hundred years. Its original purpose was to ensure that unpopular parties could get representation and that barristers were not criticised for acting for them.
It gained particular importance during the IRA's bombing campaign of mainland Britain.
The report says that a 'substantial amount of mythology' has been built around the rule, but suggests it is 'not really a rule but more a principle masquerading as one'.
While the bar is 'captivated' by the cab rank rule and some barristers have an 'absolute conviction' that without it, 'the rule of law would collapse' there is little evidence that it is understood within the legal marketplace or that it serves any purpose, the report says.
Only self-employed barristers instructed by solicitors are subject to the rule; it does not cover solicitor advocates or barristers doing direct access work.
Exclusions, including the exemption of legal aid work, 'virtually emasculate' the rule, the report says. It finds no evidence of the rule being monitored or enforced by the regulator, and that it has never been the basis of any disciplinary proceedings.
In addition, it says it could not be shown that the rule ensured representation.
The report concludes: 'While it can be lauded as a professional principle enshrining virtuous values, as a rule it is redundant. We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalised legal services market.'
Instead, the report suggests that, as the legal profession moves from being governed by rules to a code of principles or outcomes, it would be more appropriate to consider whether the cab rank rule could be moved to a principles basis.
But, if a rule is deemed to be necessary, it suggests the adoption of the model used in the New York State Bar, which says: 'You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability,' modified with the addition: 'you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence'.
The LSB report describes the New York rule as clear and unambiguous. 'It protects clients and it can apply to all lawyers, and we see an equivalent in the SRA Handbook. It has no need of exceptions and exemptions, which presently serve only to confound and confuse clients,' says the report.
The LSB has invited views from stakeholders, both professional and consumer.