Diana Klimiuk
European Legal Studies
Representing unpopular defendants
Can lawyers pick and choose who they wish to represent?
Client selection is one of the most important issues for lawyers. Once the lawyer is decided to take on the case of a particular client, he or she cannot simply abandon them because of the special relationship that is made between the defendant and their representative (lawyer). There are two very important issues related to the ethical problem in the question. First of them is a hesitation if an obligation to take unpopular cases exists and the second is whether it is professionally responsible to refuse certain cases.
Theoretically the duty to take unpopular cases is imposed on all barristers in general. This is because of the so-called ‘cab-rank rule’. The cab-rank rule is the obligation to a barrister to accept any type of work that comes along in a field in which he is recognised competent to practice. The rule can be found under paragraph 602 of the Code of Conduct of the English Bar.
The Bar supposes that all advocates that profess themselves competent to practice in any of the legal fields should be under the obligation to take on the cases they are authorised to take and by any means must not select cases to shun unpopular clients. Moreover, according to the Bar, no practicing barrister should have a right to refuse along-coming work on the ground that the client is already legally served.
As already mentioned, barristers cannot refuse providing their services neither on the ground that the case is ‘objectionable’ to them, nor bearing in mind that the client’s beliefs or their financial source to cover the legal costs are unacceptable to the barrister. Nevertheless, there are some exceptions to the rule. In practice, a barrister can turn down a brief when they lack experience of competence in case, when they do not have sufficient time to prepare the case properly, when the fee is not adequate to the case, when they already have a full schedule etc. It is obvious that a barrister who is not willing to undertake the case would get around easily and finally avoid undertaking it using one of the grounds for refusal given above. At this stage, the question arises: “Does our legal system actually need the cab-rank rule?” Bearing in mind that the rule could be not obeyed when wanted one could say that the principle of the rule is nothing but useless. On the other hand, it could be said that thank to this rule unpopular clients have a possibility to receive proper legal representation. Nonetheless, we encounter other problem on the way to answer this question. Namely, the distinction between barristers and solicitors does allow the least to decide freely whether to accept instructions from any client in particular. However, solicitors are not advised to accept clients who are acting aggravated by malice. Why, thus, is the cab-rank rule merely used in terms of barrister services? Is it so because barristers are mostly to represent any defendant in higher courts? Or is it so because it is much more tough to obtain higher advocate services? In general, there are no suggestions that solicitors should be subject to the rule. There are various reasons why a firm of solicitors might not be willing to act for any client or class of clients in particular. Nonetheless, various consequences to be faced would come along if solicitors were made subject to the “cab-rank” rule. One of them, for instance, would be a great confusion in regard to distinction of the cases that go to higher courts any these that do not. Anyhow, bearing in mind the distinction between the professions, we also have to come upon the link that connects these two. Apparently, a client could only get a barrister representation if he (the client) has first coped to find a solicitor to act for him. Thus, albeit that solicitors have no “cab-rank “rule, their work in higher courts is combined with the one of barristers. However, if the two professions are to be competitive between each other, they should operate as they normally do – the barrister taking instructions from solicitors and solicitors taking their instruction from clients.
