The cab rank principle

Brian Walters, a good QC, is running for the Greens in the imminent Victorian election.  His Labor opponent, Bronwyn Pike, has raised the fact that he once took a brief for a brown coal company, while now he is against brown coal as a means of generating energy.  This smear campaign is not one to be expected from a minister in a mature democracy.  Most people have some understanding that barristers (not solicitors) are obliged to take a brief from anyone, pretty much regardless of what they think of them, if the client is prepared to pay their usual fee, and they are available, properly instructed, not conflicted and the brief is within their skillset.  The principle, which acts as a conceptual prophylactic against the ‘disembarkation of fleas’, is called the ‘cab rank rule‘. Victoria’s version is set out below. It is in my opinion not one of those rules which is observed in the breach.  Even if it is not perfectly observed, it has a useful and substantial operation.  Ministers’ understanding of it should be developed; it is a fundamental precept of one of the arms of government (the judiciary).

There are three reasons why Pike’s comments are unfortunate.  First, Education Ministers should presumably try harder than others to avoid displays of ignorance.  Second, her electorate — Carlton, East Melbourne, Parkville — is no doubt teeming with lawyers (not to mention bloggers …). Third, it undermines what respect remains for the legal system. Top Victorian lawyers’ assessments of Ms Pike’s comments have been swingeing.

But one silly comment in the heat of campaigning is one thing.  When the issue is escalated to the Premier and Treasurer, and their responses are as follows, condemnation is called for, hence this post:

Premier: “‘It’s a fair story. It’s the first I’ve seen of it, but I think people will make their own judgment about the facts as they see them,” he said.

Q: Was it unfair to criticise lawyers for the actions of their clients?

A: ”One thing I’m grateful for is I’m not a lawyer, so I can’t answer that question.”

Treasurer: ”So we have a candidate who’s out there preaching the evils of brown coal, preaching the evils of our industrial relations system that he says is unfair on workers but while doing that he takes a brief working for a brown-coal company … basically having a go at an injured worker’s family.”

Extract from the Victorian Bar Inc’s Rules of Conduct:

’86.    A barrister must accept a brief from a solicitor to appear before a court, to advise or to draw pleadings or any other document in a field in which the barrister practises or professes to practise if:

(a)    the brief is within the barrister’s capacity, skill and experience;

(b)    the barrister would be available to work as a barrister when the brief would require the barrister to appear or to prepare, and the barrister is not already committed to other professional or personal engagements which may, as a real possibility, prevent the barrister from being able to advance a client’s interests to the best of the barrister’s skill and diligence;

(c)    the fee offered on the brief is acceptable to the barrister; and

(d)    the barrister is not obliged or permitted to refuse to accept or retain the brief under Rules 92, 94, 95, 96, 98, 99, 100 or 101.

87.    A barrister who is generally available to accept a brief shall not discriminate, in any way, for or against a client, or class of clients.

88.    A barrister must not set the level of an acceptable fee, for the purposes of Rule 86(c), higher than the barrister would otherwise set if the barrister were willing to accept the brief, with the intent that the solicitor may be deterred from continuing to offer the brief to the barrister.’

[Rules 92,  94, 99 and 100 relate to conflicts of duties and conflicts of duty and interest of various kinds, briefs the complexity of which are beyond the barrister’s capacity, and where clients refuse to retain a solicitor to brief the barrister where a solicitor is needed, and where solicitors refuse the barrister the opportunity to meet with the client.  Rule 95 is about where a barrister is already professionally (not socially) committed on the day of the proposed brief.  Rules 96 and 98 are reproduced below, being a bit hard to summarise.  Rule 101 limits barristers’ ability to pull out of briefs to defend a serious criminal charge.]

Briefs which may be Refused
96. A barrister may refuse to accept or retain a brief from a solicitor to appear before a court if:

(a)    the barrister considers on reasonable grounds that the time or effort required for the brief threatens seriously to prejudice the barrister’s practice or other professional or personal engagements;

(b)    the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with any agreement as to costs made with the solicitor or client;

(c)    the instructing solicitor does not agree to be responsible for the payment of the barrister’s fee;

(d)    the brief may, as a real possibility, require the barrister to cross-examine or criticise a friend or relation;

(e)    the solicitor does not agree to a request by the barrister that appropriate attendances by the instructing solicitor, solicitor’s clerk or client representative will be arranged from time to time for the purposes of:

(i)    ensuring that the barrister is provided with adequate instructions to permit the barrister properly to carry out the work or appearance required by the brief;
(ii)    ensuring that the client adequately understands the barrister’s advice;
(iii)    avoiding any delay in the conduct of any hearing or compromise negotiations; and
(iv)    protecting the client or the barrister from any disadvantage or inconvenience which may, as a real possibility, otherwise be caused;

(f)    the prospective client is also the prospective instructing solicitor, or a partner, employer or employee of the prospective instructing solicitor, and has refused the barrister’s request to be instructed by a solicitor independent of the prospective client and the prospective client’s firm;

(g)    the barrister, being of Queen’s Counsel, considers on reasonable grounds that the case does not require the services of Queen’s Counsel;

(h)    where the fee offered to the barrister or marked on the brief is not the barrister’s usual fee for a matter of the kind to which the brief relates; or

(i)    where past experience of the particular client or an essential witness is such as to give good reason to believe and the barrister does in fact believe that his or her performance in the conduct of the proceedings would be adversely affected.

(j)    where the barrister considers that having regard to other commitments, professional or otherwise, he or she may have insufficient time to give proper attention to the brief;

(k)    where the barrister has some special knowledge of the other party’s case by reason of participation in some other litigation;

(l)    where there is a direct or indirect personal relationship between the barrister and a party or a witness in the prospective proceedings which is sufficient to cause embarrassment to the barrister were the brief to be accepted;

(m)    where the barrister has been a witness in related proceedings;

(n)    where the barrister knows or has reason to believe that his or her own professional conduct is likely to be impugned in relation to matters out of which the action arises;

(o)    where the barrister finds his or her own professional conduct being impugned in the course of the proceedings to which the brief relates, unless in his or her opinion a retirement therefrom at that stage would jeopardise the interests of the client;

(p)    in such other circumstances as may be permitted by the Ethics Committee.

…

98. A barrister may return a brief if, after acceptance of the brief:

(a)    the barrister’s request that appropriate attendances by the instructing solicitor, solicitor’s clerk or client representative will be arranged from time to time for the purposes of:

(i)    ensuring that the barrister is provided with adequate instructions to permit the barrister properly to carry out the work or appearance required by the brief;
(ii)    ensuring that the client adequately understands the barrister’s advice;
(iii)    avoiding any delay in the conduct of any hearing or compromise negotiations; or
(iv)    protecting the client or the barrister from any disadvantage or inconvenience which may, as a real possibility, otherwise be caused;
has been refused;

(b)    subject to para (d) the barrister’s advice as to the preparation or conduct of the case, not including its compromise, has been rejected or ignored by the instructing solicitor or the client, as the case may be; or

(c)    fees have not been paid reasonably promptly or in accordance with any agreement as to costs, and have remained unpaid after reasonable notice by the barrister to the instructing solicitor or client, as the case may be, of the barrister’s intention to return the brief for that reason.

(d)    the provisions of rule 200 relating to Conditional Fee Agreements applies.’