Italian Lawyer on the Duty of Independence and the Cab-Rank Rule

This op-ed piece (reg reqd) from an Italian litigator explores the link between the cab-rank rule and the lawyer's duty of independence.  (The cab-rank rule requires a barrister to accept any lawful, paying client regardless of the politics and popularity of the client.  We in the US have never formally adopted that rule, although we do declare that lawyers should represent the defenseless and oppressed.  When US lawyers hear the phrase "cab-rank rule," they typically think of the UK and commonwealth systems.)

The author, Eleonora Ballarino, focuses on an Italian firm's public statement that it would not take on litigation matters that were adverse to potential clients and the interests of current clients.  That attitude, says Ballarino, betrays the lawyer's duty of independence and can result in the powerful institutions (insurers, banks, large corporations) locking up all the lawyers.

I found the piece interesting for two reasons.  First, in the continental legal professions, the duty of independence is considered the primary duty of lawyers.  (For a longer explanation, see chapter 4 of Hazard & Dondi, Legal Ethics: A Comparative Study (Stanford University Press 2004))  Here in the US, we emphasize the duties of confidentiality and loyalty, and rarely invoke the "duty of independence."  (As I understand it, US accountants emphasize the duty of independence.)  But each element of the continental duty of independence -- independence from the courts, the state, the client itself, other clients, the lawyer's personal views, the interests of colleagues, etc. (see Hazard & Dondi at p. 147) -- can be found in the ABA Model Rules.  We just don't pull them together into the overarching and primary duty of independence.  Perhaps that rhetoric would help lawyers in their current battles with the federal government over professional regulation.

Second, you don't often hear the fear that all the elite US firms will be locked up by the powerful institutions.  We have a very strong plaintiff's bar here.  And, unlike the situation in London, where a handful of firms constitute the "Magic Circle," we have dozens, or even scores, of firms large enough to take on enormous matters against powerful companies.

UPDATE:  Please be sure to read Duncan Webb's comments below, and Walter Olson, at Point of Law, says that the absence of a cab rank rule  is part of the peculiarly American entrepreneurial style of lawyering.

Comments

[Duncan Webb]

Here are some thoughts on the efficacy of the cab rank rhetoric:

The Cab Rank Rule
The rule that an advocate must accept any brief is in many ways at the heart of the English and Welsh (as well as the Scottish) tradition of advocacy. While it is no secret that in practice few advocates ever have to accept a brief they would prefer to turn away, it represents the basic values of fierce independence, scrupulous neutrality, and undivided loyalty that are at the core of the common conception of lawyering. In many ways, the famous words of Thomas Erskine to the jury in the trial of Thomas Paine on charges of seditious libel represent the foundational value of the English Bar:

‘If an advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of judge; nay, he assumes before the hour of judgment, and in proportion to his rank or reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions …’

There are numerous other famous statements of the cab rank rule and its rationale. A more recent articulation is to be found in rule 6.01 of the Code of Conduct of the Bar of England and Wales and s 17 of the Courts and Legal Services Act 1990. Although Erskine’s statement suggests that a refusal to act might be taken as a signal of the advocate’s views on the case, it is clear now that the rule acts as a screen between the advocate’s own views and his or her professional support of the case. This view was expressed by Lord Reid in Rondel v Worsley thus :

If counsel is bound to act for such a person, no reasonable man could think the less of any counsel because of his association with such a client, but, if counsel could pick and choose, his reputation might suffer if he chose to act for such a client, and the client might have great difficulty in obtaining proper legal assistance.

Indeed it is now well established that an advocate’s personal views as regards the merits of the case in hand and arguments being made are irrelevant and it would be inappropriate to introduce them – hence the practice of advocates prefacing their arguments with the impersonal “I submit”.

A number of other results flow from the neutrality implicit in the cab rank rule. Without that neutrality the loyalty (partisanship or zeal in other discourse) would be impossible. Similarly the rule was a key plank in the argument in favour of the now largely removed immunity. The rule is widely seen as a foundational aspect of advocacy, thus it could be said:

[T]he cab-rank rule is a salutary rule. It is an integral and long-established element in our adversarial system. Down the centuries the cab-rank rule has been the way in which unpopular causes have been represented in court. (Geveran Trading Co Ltd v Skjevesland [2003] 1 All ER 1, 12 per Arden LJ)

This statement identifies the important place that the rule occupies in the adversarial nature of litigation. The rule is vital in enabling the detached commitment from which the largely unfettered adversarial approach flows and isolates the advocate from any taint from his or her client’s cause. The above statement also identifies a further important strand of the rule – that access to justice, for a client with any cause no matter how repugnant or ill founded, is assured. Arguably, if this were not the case the inability of a client to secure counsel would be a signal to the judge (or more dangerously the jury) that the cause lacks merit.

However, for a number of reasons the fact is that the cab rank rule may be of little practical significance to clients, or indeed to the administration of justice more widely . A healthy scepticism in respect of the utility of the rule was shown when Lord Steyn in Arthur J S Hall & Co (a firm) v Simons stated:

It is a valuable professional rule. But its impact on the administration of justice in England is not great. In real life a barrister has a clerk whose enthusiasm for the unwanted brief may not be great, and he is free to raise the fee within limits. It is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept.

It might further be observed that instances of the rule placing advocates in a real dilemma are further reduced by a number of other factors. Advocates choose practice areas in which they are comfortable to work and as such a commercial barrister is unlikely to be troubled by a brief from a terrorist suspect. Similarly time can generally be found for an attractive brief, but existing workload may be a reason for declining a brief from a troublesome client or one with a slim chance of success.

The result is that the cab rank rule operates as more of a collective professional statement than a constraint in day to day practice. It is a declaration that advocates will speak for anyone, and do so “fearlessly and by all proper and lawful means”. As such it reinforces a combat-like approach to litigation whereby advocates are seen as champions who are expert in their art and who will use their every endeavour within the agreed code to succeed for their clients. In this sense it echoes the so called “standard conception” of legal practice (also referred to more colourfully as the “hired gun” approach) advocates are available to assist in any cause regardless or merit. This total professional commitment to any cause regardless of the personal views or actual merits of the matter is at its most stark in the English and Welsh professions.