Should ‘good’ barristers be allowed to decline to act for ‘bad’ clients? Client selection and the impact on the rule of law (long read)

More than 120 lawyers announced last week that they will not take briefs to prosecute peaceful climate protestors or act for companies pursuing fossil fuel projects. The group (‘Lawyers are Responsible’) called upon the government to act urgently to address the climate crisis and to promote sustainability. Twelve junior barristers and six king’s counsel have signed a Declaration of Conscience (‘the Declaration’), launched today outside the Royal Courts of Justice, declaring their intention to act in breach of the ‘cab rank’ rule. Some barristers have already referred themselves to the Bar Standards Board (‘BSB’) for this ‘breach’.

The signatories argue that the law is bound up with the idea that the law is right and that it reflects the democratic will of the people. They argue that the “scientific evidence is that global heating, the natural and inevitable consequence of its actions, will cause the deaths of huge numbers of people. The criminal law should punish this but it does not. Nor does the law recognise a crime of ecocide to deter the destruction of the planet. The law works for the fossil fuel industry”.

What is the impact of the Declaration and what exposure do the barristers potentially face at the expense of their beliefs?

What is the ‘cab rank’ rule?

Conduct rule 29 of the BSB Handbook (‘the Handbook’), enshrines the longstanding rule that barristers must take the cases that they are given (so long as they have the requisite knowledge and availability) regardless of their personal views on the client, what they are said to have done or the cause(s) they stand for. rC29 states in terms:

“If you receive instructions from a professional client, and you are:

1. a self-employed barrister instructed by a professional client; or

2. an authorised individual working within a BSB entity; or

3. a BSB entity and the instructions seek the services of a named authorised individual working for you,

and the instructions are appropriate taking into account the experience, seniority and/or field of practice of yourself or (as appropriate) of the named authorised individual you must, subject to Rule rC30 below, accept the instructions addressed specifically to you, irrespective of:

a. the identity of the client;

b. the nature of the case to which the instructions relate;

c. whether the client is paying privately or is publicly funded; and

d. any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.” (emphasis added)

Conduct rule 30 of the Handbook, sets out certain limited, finite exceptions to the rule, for example, a barrister can refuse to accept instructions where there is a conflict of interest, a proper fee has not been offered or the work would require a barrister to cancel a pre-existing commitment. Environmental or other ideological considerations are not listed as permitted carve outs.

Industry response

Ideologically, this is a divisive issue (although from a regulatory enforcement perspective, the issues are perhaps more straightforward – see below).

The Chair of the Bar Council, Nick Vineall KC, has decried the Declaration arguing that any improper derogation from the cab rank rue ultimately undermines the rule of law. He argues, somewhat persuasively it must be said, that the cab rank rule is critically important in the context of sanctions against Russian individuals:

“Lord Sumption in his Reith lectures identified three main strands to the rule of law. Firstly, public authorities have no power to coerce us, other than what the law gives them. Secondly, people must have a minimum of basic legal rights (and he discusses what those might be) and lastly, there must be access to independent judges to vindicate these rights, administer the criminal law, and enforce the limits of state power.

… the rule of law…is fundamentally important, it provides rights to individuals whether or not we approve of them (or anyone else approves of them, for that matter), and those rights include the right to fair trial, and – perhaps most pertinently for present purposes – a right to challenge the lawfulness of coercive measures imposed by the state.

The cab rank rule…obliges self-employed barristers instructed by a professional client, subject to some limited exceptions (including that it does not apply to foreign work), to accept instructions which they are competent to take – and this is the critical bit –  irrespective of the identity of the client, the nature of the case, and/or any belief or opinion which the barrister may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

This means that, not only is it open to barristers to advise and/or represent sanctioned Russians if a licence so permits, but we are professionally obliged to do so if the cab rank rule is engaged.  It seems to me that we are much more likely to achieve the rule of law if we continue to adhere to the cab rank rule, and it continues to be taken seriously and complied by within our profession.”

In a more personal post, he has also outlined his own views on the stance taken in the Declaration:  

“The cab rank rule promotes access to justice and promotes the rule of law. It is disappointing that some lawyers apparently wish to remove these rights from people of whom they disapprove.  

I would be profoundly unhappy if a climate change activist accused of a public order offence were ever to be precluded from obtaining the services of the barrister of their choice because their chosen barrister happened to disapprove of the particular way in which they had been protesting."

The Declaration has received a negative reception from other barristers for undermining what they see as a crucial tenet of the justice system, that not only protects defendants, but also barristers themselves. There are concerns that an unintended consequence of the Declaration will be that barristers who do prosecute climate protestors for example, are making a positive choice to do so; the same ready inference can then be drawn about those who defend those charged with other serious offences, such as murder or child sexual abuse. The very existence of the cab rank makes clear to the public at large that barristers do not choose who they represent, thereby protecting barristers from any improper suggestion that they are aligned with their clients’ views, alleged actions or perceived cause(s).

Is regulatory action likely?

The eighteen barrister signatories to the Declaration recognise that the stance puts them in at least a hypothetical breach of rC29. They say have referred themselves to the BSB for breaching the cab rank rule.

We doubt very much that the regulator will look to commence regulatory proceedings where barristers have merely stated a future, non-specific, intention to breach a rule, without having actually done so. It is hypothetically possible though, think breaches of, for example, core duties 4 and 5 (‘you must maintain your independence’, and ‘you must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession’), but it is hardly the strongest footing on which to bring regulatory action.

If the BSB instead determine to wait until actual breaches of the rule occur (assuming they do – who would look to instruct the signatories on such cases now?!), how will it come to know about them? Will the barristers need to self-report every time they turn down a relevant case?

Likely exposure

If the BSB were to successfully bring a professional misconduct case against any of the barrister signatories, it is worth noting that all sanctions, up to a lengthy suspension, would likely be available to BTAS. The Bar Tribunals and Adjudication Service (BTAS) Sanctions Guidance states the following in relation to “formal obligations to clients” under which a breach of the cab rank falls:

Seriousness	Indicative Sanctions
Upper range (significant culpability and significant harm)	Suspension of over 12 months to disbarment
Middle range (moderate culpability and moderate harm or significant culpability and limited harm or low culpability and significant harm)	Medium level fine – suspension of less than 12 months
Lower range (low culpability, limited or no harm)	Advice as to future conduct/reprimand – low level fine

As set out above, it is possible that the BSB may take action against the barristers under other parts of the Handbook and so the range of sanctions will differ depending on any charge sheet preferred.

There have been only a few cases where barristers have been prosecuted for breach of the cab rank rule, one such case, in 2006 resulted in a reprimand. A religious barrister who refused to represent a client on the basis of the client’s sexuality was found by a disciplinary panel to have committed professional misconduct for breaching the cab rank rule without justification. The barrister received a reprimand and was ordered to pay £1,000 towards the costs of the case. This case carries little by way of useful precedent as it deals with a breach of the cab rank rule on the basis of (otherwise unlawful) sexual-orientation discrimination. Signing the Declaration involves a hypothetical breach on the basis of a very different ideological underpinning without an associated unlawfulness (e.g. discrimination).

What of the other lawyer signatories?

Solicitors, unlike barristers are permitted to make morally-derived decisions about which clients they act for. A firm declining to act for a global oil company in the construction of a new coal mine, will not face allegations of breaches of the SRA’s Standards and Regulations. Whilst the solicitors’ profession is beginning to talk more in recent years about client selection, particularly post the Russian invasion of Ukraine, it is not a matter in which the SRA, has to date, got involved. The cab rank rule is a beast peculiar to the barrister’s profession.

What next?

The BSB will no doubt consider the barristers self-referrals under its Enforcement Regulations. An actual, admitted, or proven breach of the cab rank rule will likely provoke a solid regulatory response. Whether the ‘mere’ declaration of a future intention to break the hallowed rule is enough to move the BSB to take regulatory action, remains to be seen. What is crystal clear however is that the legal professions will be grappling with the issue of client selection for the months and years to come.

Further information

If you have any questions regarding the blog, please contact Imogen Roberts or Julie Norris in our Regulatory team.

 

About the authors

Julie Norris is a partner in the Regulatory team. She predominantly acts in the professional services sector, advising law firms, solicitors, and barristers as well as accountants and built environment professionals on regulatory compliance, investigations, adjudication, enforcement, and prosecutions.

Imogen Roberts completed her training contract with Kingsley Napley and qualified as a solicitor in September 2022. During her trainee seat with the Regulatory team, Imogen assisted with investigating and preparing fitness to practice cases relating to professional misconduct, ill-health and lack of competence.