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English Legal Services Board and the Cab Rank Rule

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Nigel Morris-Co...
chiefofficersnet

The Legal Services Board is supposed to be the regulator of regulators for the legal profession in England and Wales. Its leader is not a lawyer and has, therefore, never been in practice. When the Legal Services Board wanted a review of "The Cab Rank Rule," they turned to a couple of academics and told them to read about it and write about what they found. They were both eminently qualified (not), having written a lot of stuff, read a lot more (quoting a lot of it in the stuff they wrote). Oh, and neither of them had ever held a responsible post in law or, for that matter, outside academia. And it's been a pointless exercise in proving the obvious, says retired solicitor Nigel Morris-Cotterill

john flood is a professor of law and sociology (he uses lower case for all of that on his own website at www.johnflood.com).

Morten Hviid's claim to relevance is stated in his profile at the University of East Anglia, where he is Professor of Law, as " Although trained as an economist, Mortens (sic) interest in law is long-standing and he has published in both fields, including papers in Economic Journal, European Competition Journal, European Law Review, International Journal of Industrial Organization, Journal of Industrial Economics, Journal of Law and Economics, Oxford Journal of Legal Studies and World Competition. Morten researches in the areas of competition law, contract law and tort law. Currently his research focuses on private enforcement of competition law and practices which facilitate collusive behaviour."

At least, though, they are both Professors in the true sense, not the American sense of lecturer simpliciter.

The report, published by the LSB at https://research.legalservices... is an academic study. And entirely pointless.

The situation is this: there is a Bar rule, called the cab rank rule. It is supposed to ensure that all persons have access to the best available representation. That means that, when a brief arrives in Chambers, unless it has been addressed to a specific barrister, it is allocated to the most senior barrister available to take it, provided he is competent in the relevant field. He, like the first taxi in the rank, is supposed to take the work, regardless of what it is. Of course, cynics would argue that the social aspect of that is really window dressing and the true point of the rule is to make sure that the senior members of chambers get their pick of the work.

But anyone in practice (and this is the point as to why the lack of real-world experience of those at the top of the LSB and of the two academics commissioned to "carry out a literature review analysing the impact on the market.. of the Cab Rank Rule" is is highly relevant) knows that the Cab Rank rule has not worked for at least a quarter of a century.

First, senior barristers don't want to do whatever arrives in their mailbox. There are three reasons: first, a TWOC hearing for a head-tripping youth in an out of the way Magistrate's Court won't pay enough to cover the costs of travel and of the day's dry cleaning. Secondly, it's reputational doo-doo. In a world where one is best known for one's most recent case, defending a man who cut the balls off his neighbour's cat in a misguided idea that it would keep it quiet at night, is hardly a reputation builder. Third, it's boring. Seriously: a recidivist shop-lifter is going to go to jail today, or next time, whatever the mitigation offered and the intellectual engagement with a middle-aged, Prozacked, weary-of-life divorcée is not going to be stimulating.

So when such a case comes in, miraculously, every barrister in Chambers is busy, until it slides down to those in the second part of pupillage or, maybe, a newly qualified barrister who the Clerk sends along as a favour to a busy solicitor who usually sends more valuable work.

In any case: the fee will be set, or capped, by the Legal Aid provisions so it really is not worth the time of any barrister who has anything at all to do, not just something "better" to do. And that's why the Bar negotiated an exemption from the Cab Rank Rule for legal aid work - both civil and criminal.

Secondly, barristers and solicitors build up long-term working relationships, often beginning when they are both in training. As they move up the career ladder, they move up together, bigger, more lucrative cases. The solicitor "instructs" his friend who, despite the public protestations of the Bar, becomes more colleague than agent.

But the supposed rule also requires an available barrister to take up whatever work is directly offered to him. So, if a brief comes into Chambers with the name of a barrister on it, it is supposed to go to him. I have seen instances where an interesting or lucrative case was hijacked by a more senior barrister on the basis that the named counsel could not take it so it went to allocation under the Cab Rank Rule. I have seen briefs marked by the clerk with a fee that was so outrageous that the client could not possibly afford it, the sole purpose being to ensure that the brief was recalled.

The report " found no evidence of the rule being actively monitored or enforced by the regulator... indeed specialisation by some Chambers arguably demonstrated that the rule was regularly breached."

Any solicitor could have told them that. But the terms of reference precluded interviewing practitioners. They amounted to "sit and read some journals - where articles are written by other academics - and tell us what you find."

And now, having spent the best part of a year and however much it cost, the LSB wants solicitors to express their views: "The LSB will be interested in hearing the views of stakeholders, both professional and consumer, on the report’s analysis and its suggestions for the way ahead."

So, there it is, then. More jobs for the boys: a consultation that means that there will be more time and money spent.

So let's save both: listen very carefully.

THE CAB RANK RULE DOES NOT WORK. IT HAS NOT WORKED FOR AT LEAST 25 YEARS. SCRAP IT. AND DON'T SPEND A FORTUNE DECIDING WHETHER TO REPLACE IT AND IF SO WITH WHAT. IT'S A FREE MARKET, IT OPERATES LIKE A FREE MARKET AND HAS DONE SO WITH SUCCESS FOR A LONG TIME. REMOVE THE FAKE RESPECTABILITY AND LEAVE IT ALONE.

And next time you want a proper opinion, ask a lawyer. Hell, ask me: I'll do it in a fraction of the time, for a fraction of the cost.

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Nigel Morris-Cotterill is Head, The Anti Money Laundering Network, ultimate owner of ChiefOfficers.Net. He was a solicitor in private practice with a significant litigation practice. He is the author of the recently published Sun Tzu and the Art of Litigation .

 


 

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