1.The effectiveness of the barristers’ ‘cab-rank’ rule as a means of facilitating access to justice and overcoming legal barriers for people who are disadvantaged in dealing with the legal system?
2.Whether extending the ‘cab-rank’ rule to solicitors is an effective way to facilitate access to justice for persons disadvantaged in dealing with the legal system. Will
this assist in dealing with the current access to justice crisis in Australia?
1. It is the fundamental right of every individual to get justice in all aspect of his or her life. It is one of the basic principles of law that every individual should be treated equally before law and legal provision should be applied each of them. However, there are certain loopholes to the justice system where it has been observed that certain individuals are getting disadvantaged and do not get proper justice. This mentality has denied the basic principle of law and criticisms have been raised regarding the same. The social structure has made differences in between advantaged and disadvantaged people and it has been observed that the people with certain disabilities have to face lots of problem regarding the same. Further, in the continents of Australia, the aboriginal are denying from justice and this rule makes the entire process chronic. In the modern world, it has been observed that the refugees are also not getting justice properly and all these events make them disadvantaged categories. Considering the base of the legal foundation, it has been observed that there are certain barriers that make certain classes of people socially and economically disadvantaged. The barriers can be categorized as follows:
It has been observed that the fees of legal service in the modern world are quite high and it is not possible for every people to go with it. Further, the policy of legal aid is quite restrictive in nature and the coordination process of legal aid service is very poor. There are certain limitations in the pro bono legal service and the provisions of civil liabilities have been changed. All these things make the accessibility to the advocates restricted. Further, the disadvantaged classes are afraid of retribution and the process of getting justice for them is quite hard due to communication problem with the legal professionals. In addition to this, it has been observed that the people have minimum knowledge about the legal services and due to this; they could not understand what is doable for them in certain circumstances. In case of the aboriginals, their distrust on the legal system is the main reason. Further, the formalities of the legal system make them disadvantaged on a larger basis. It has been observed that the common people of UK are facing certain problems regarding the economic downturn and they could not afford the fees of the advocates. Further, it has been observed that the common people found it difficult to understand the legal provisions properly and they could not afford the free legal advice from the advocates. In this scenario, the rules relating to the cab rank help the common people in getting justice. in this system, the barristers can take the cases belong to their specialization and can deal with the same. They can enjoy all the powers of the advocates with their daily normal fees and there shall be no increase in the salary. Cab rank helps to reduce the burden of court and the principle of justice is established through this.
Therefore, it can be stated that such barriers have created certain adverse situations classes of people. It is difficult for them to get proper justice and therefore, the main ideology of legal system has been insulted. A need for new system has been cropped up to minimize the burden and it has been observed that the legislative authorities are taking certain steps to this effect. Cab rank rule is one of them[1]. It enables the barristers to proceed with a work of their field and this rule makes the barristers competent to practice. Further, according to this rule, the barristers can appear before the court and they will get remuneration as per their daily rates. According to the English law, the cab rank rule has been inserted in rC29 of the Bar Standards Board Handbook. According to the rule, if any instruction has been received by any person to plead on behalf of him, the barristers can accept the instruction. However, there are certain provisos regarding such acceptance of instruction. The barristers should not accept the instruction if the person is agreeing to pay privately to the barrister. Further, no barristers are allowed to choose their clients on the basis of their identity and the nature of the case.
According to the Legal Services Act 2007, it is the right to get a barrister to be represented on their behalf[2]. This rule facilitates the process of justice and the fundamental rule of equality can be established. Therefore, the main purpose of the cab rank rule is to promise justice to the disadvantaged group of the society so that they can get an easy access to the justice. the minds of the economists have been enriched with extensive economic benefits in the year 1776 when The Wealth of Nation by Adam Smith has been published. It has been learnt from the book that opportunities can be get by way of specializations in the subject. Further, it has been observed that the matter of specialization gives birth to competitive market. Therefore, it can be stated that the cab rank rule can be efficient in case of obtaining justice for everyone. However, there can be negative impacts as the process could promote competition and damage other regulatory objectives[3].
In certain circumstances, it has been found that any parties of a case could not able to represent them by any counsel in the court. Cab rank rule gives them the opportunity to get a counsel so that they can represent them before the court. The rule regarding cab rank can only be applied to specific circumstances, the direct access of the client is not allowed in this case, and the rule could not be applied in case of the solicitors and the advocates. However, the effectiveness of barrister’s cab rank rule should be discussed in a systematic manner.
The doctrine of cab rank rule is simple in nature and certain restrictions have been imposed on the barristers so that they could not allowed to take random cases under this system. according to paragraph 601 of the Bar Standard Board, the barristers are restricted to take up any case that is objectionable for him. A barrister could not take any case the subject matter of which exceeds his specialization[4]. Further, if the conduct opinion of the client is unacceptable to the barrister, they ought not to proceed with the same. However, certain positive grounds have been made in paragraph 602 of the Bar Standard. According to this, the barristers should have to abide by the rules mentioned in the cab rank and they are empowered by the rule to take cases according to their specialized subject. They can act on behalf of the person who are either privately funded or publicly funded. According to the rules mentioned under the provision, the barristers can accept all the instructions if the same is made within their specialization. Therefore, it can be stated that the ultimate purpose of the cab rank rule is to guarantee the availability of justice to all.
However, certain problems have been cropped up regarding the rule. According to the basic rule of cab rank, the barrister will accept all the cases and instructions with the daily remuneration. There should be no extra money payable to them. According to Bar Standard Board, “The cab-rank rule was not designed to define acceptable remuneration; it exists to ensure that anyone can access a barrister no matter how unpalatable the case. It is right and proper that we acted to protect a principle that is central to the interests of clients and the proper administration of justice.”
According to certain jurists, the conflict regarding the remuneration has reduced the effectiveness of the rule[5]. However, the rule plays important role in the justice system. Certain specialized areas such as the commercial sectors and the industrial sectors are benefitted from the cab rank rule[6]. The rule attracted the provision of strong judicial approval. Considering the history of the rule, it can be stated that the rule is widely simulated across other common law provisions.
2. According to Australian Solicitors Conducts Rules 2012, the solicitors are not allowed to take part in the cab rank rule. The rule has particularly been provided to the barristers. Considering the nature and scope of the rule, the barristers are not allowed to reject a matter without considering the constraints of the rule. However, this provision does not applied to the solicitors in Australia. However, there are certain guidelines prescribed by the ASCR where it has been stated that in case a solicitor has accepted any instruction from a client, he has to think about certain ethical consideration[7]. The solicitors are required to maintain certain rules before they are taking the instructions such as the competence, and promptness of the solicitors are to be considered first. Further, it is to be determined whether the provisions are clear to the solicitors or not. The solicitors are required to provide legal instruction to the client and they should have to determine the fact that the instructions given by the client are lawful or not. According to Rule 21 of the Barristers’ Conduct Rules 2011 of Queensland, a barrister can accept a brief from the solicitors if the brief is within the capacity of the barrister. It is quite clear that the main objective of the rule is to secure justice for all citizens irrespective of their caste, religion and creed[8]. Therefore, the interest of the clients is depending on the skill and diligence of the barristers. However, it can be stated that if the cab rank rule can be extended to the solicitors, the justice crisis of Australia can be resolved to certain extent.
It has been observed that in Australia, there are many people who are disadvantaged by the current justice system of Australia[9]. It has been observed that the common Australians have to face many problems due to the rigidity in the justice system. Further, the indigenous people have lost their faith on the justice system. According to a report published by the ABC News, a major portion of the prisoners in Australia is from aboriginal origin. It is a fact that the equal principle of law is not applicable for the aboriginals[10]. Further, lack of legal knowledge among the common people of Australia becomes a great barrier for the people to get justice. Denying the fundamental justice to aboriginals is a common fact in Australia. According to Ruth Barson (2016), “the crisis is one of a myopic outlook and a merciless attitude, willingness to countenance cruel, inhuman and degrading treatment”. Further, it has been observed that in Australia, the child convicts are kept with the notorious adult criminals. The Australian government has failed to make any welfare program for the adolescent convicts. All these things are responsible for the justice crisis in Australia.
However, it has been observed that many cases are pending before the court and the numbers of the barristers are quite less as against the pending cases. Further, it has been observed that many individuals could not represent them due to financial crisis and the number of the same is much large compared to the numbers of barristers. Therefore, for the benefit of the justice system, extension of the cab rank rule is necessary. It has further been observed that the rules are quite effective for the common people and they can get an easy access to the justice. Further, it has been observed that solicitors are generally excluded from enjoying the rights under cab rank rule. There are certain obstacles too. It has been observed from the rules that the remuneration of the barrister under this system is fixed. The barristers could not earn extra money in this case, as this is a moral implementation of legislature[11]. Further, the solicitors should have to consider whether the instructions of the person are within his specialized area or not. In addition to this, under the system the barristers are obliged to deal with the cases where the parties are incapable to pay sufficient legal fees. Therefore, it should have to keep in mind that the solicitors could not earn extra money from this system. The entire rule is based on moral principle of law.
However, it can be stated in this case that the judicial crisis of Australia can be diminished if the scope and jurisdiction of this rule can be extended. The faith of the common people from the legal system has been lost in Australia due to many reasons[12]. Therefore, the government should have to take certain policies by which this situation can be resolved. Extension of the cab rank rule to the solicitors can be effective in this case. However, in this case, sufficient amendments regarding the provision are required. John Flood (2013) has opined that in case of any extension regarding the cab rank rule, the crisis in Australia can, to certain extent be mitigated it. The government should have to take certain policies to that aspect. The solicitors are required to give necessary advice to the clients so that they can understand the legal process. The interest of the clients can be secured by the skill and diligence of the solicitors. The level of communication between the legal professionals and the clients are required to be developed and this could lead towards an indiscipline free judicial system.
References:
(Research.legalservicesboard.org.uk, 2018) <https://research.legalservicesboard.org.uk/wp-content/media/Cab-Rank-Rule_final-2013.pdf> accessed 30 April 2018
(Research.legalservicesboard.org.uk, 2018) <https://research.legalservicesboard.org.uk/wp-content/media/Cab-Rank-Rule_final-2013.pdf> accessed 30 April 2018
Ananian-Welsh, Rebecca, and Jonathan Crowe, eds. Judicial independence in Australia: contemporary challenges, future directions. Federation Press, 2016.
Cooper, Sarah Lucy. “The Emerging Role of Innocence Lawyer and the Need for Role-Differentiated Standards of Professional Conduct.” Controversies in Innocence Cases in America. Routledge, 2016. 143-158.
Emmett, Arthur. “Principles relating to advocate’s immunity following Attwells v Jackson Lawyers and Kendirjian v Lepore.” Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia 30.4 (2016): 10.
Flynn, Asher, and Jacqueline Hodgson. “Access to Justice and Legal Aid Cuts: A Mismatch of Concepts in the Contemporary Australian and British Legal Landscapes.” Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (2017): 1.
Gleeson, Murray. “Tom Hughes QC: A cab on the rank.” Bar News: The Journal of the NSW Bar Association Spring 2016 (2016): 61.
Goldberg, John. “Is professional ethics an oxymoron?.” Bulletin (Law Society of South Australia) 38.4 (2016): 34.
Higgins, Andrew. “Rebooting the cab rank rule as a limited universal service obligation.” Legal Ethics 20.2 (2017): 201-223.
‘Home – Australian Pro Bono Centre’ (Australian Pro Bono Centre, 2018) <https://www.probonocentre.org.au/> accessed 30 April 2018
Moses, Arthur. “The future of the New South Wales Bar: A time to reflect and act.” Bar News: The Journal of the NSW Bar Association Spring 2017 (2017): 3.
Nankivell, Ross, et al. “Vale.” Victorian Bar News 157 (2015): 118.
NSW Barristers Rules: Legal Profession Uniform Conduct (Barristers) Rules 2015
Plant, Janie. “The cab rank rule.” Brief 44.1 (2017): 20.
Remarks of the Honourable Marilyn Warren AC, Chief Justice of Victoria, Eleventh Fiat Justitia Lecture, 25 March 2014, Monash University Law Chambers, The Access to Justice Imperative: Rights, Rationalisation or Resolution?
Robertson, David. “An overview of the Legal Profession Uniform Law.” Bar News: The Journal of the NSW Bar Association Summer 2015 (2015): 36.
Ysaiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia, Lexis Nexis Butterworths, 6th edition
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