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HAVE you ever stood at a taxicab rank? Did you notice that taxicabs generally form a queue leading up to the rank and simply take the next passenger waiting? Did you also perhaps wonder why that was? The taxicabs are just following the unspoken rule of the cab-rank: if thou art at the head of the queue, thou shall not refuse the passenger before you!
You would also have noted that cabbies strictly follow this rule and in fact, there is justifiable outrage on the part of passengers and other cab drivers, if they do not.
My interest in the cab rank rule, however, has nothing to do with the goings-on at the taxicab rank but rather in the manner in which the rule relates to the legal profession.
Lawyers should provide their services to whosoever asks and pays for them.
In the United Kingdom, the cab rank rule is shorthand for the professional obligation on barristers to accept instructions from a client regardless of any personal dislike of the client or the case. It echoes the principle that a cabbie available for hire cannot generally refuse to carry a passenger, although unlike cab passengers, in case of lawyers, the client has the option to choose a lawyer he prefers.
The rule is codified in the Code of Conduct of the Bar of England and Wales, and specifically states that a barrister must not withhold his services even if (a) he considers the nature of the case objectionable; (b) the client’s behaviour, beliefs or opinions are unacceptable to him, or (c) he is uncomfortable with or unaware of the client’s source of funds.
Surely this sounds quite reasonable? I am sure we all agree that lawyers, like doctors and perhaps even cab drivers, should be ready to provide their services to whosoever asks and pays for them. Imagine if a cab driver were to refuse to drive you because he didn’t like your looks. Or if a doctor refused to treat you because you were the wrong religion.
Just as these possibilities are unthinkable, it is also unthinkable that lawyers should refuse to accept the brief of a person who wishes to engage and who is willing to pay the fee for an equally unreasonable reason. The only caveat to this argument, however, is that the Pakistani legal system does not think so.
We should note that paragraph four of Chapter IV of the Canons of Professional Conduct and Etiquette laid down by the Pakistan Bar Council in exercise of its powers under Section 13 of the Legal Practitioners and Bar Councils Act 1973, expressly stipulates: “No advocate is obliged to act either as adviser or advocate for every person who may wish to became his client. He has the right to decline professional employment.” Interestingly, therefore, in stark contrast to the English legal system, from which it is derived, in the Pakistani legal system, a lawyer first judges a client and only if the client passes muster is he allowed to approach the courts where his fate is ultimately decided.
Although the philosophy behind this provision of the Pakistani Code of Conduct remains unclear, its effect on the legal system is evident.
For instance, it is not uncommon for wealthy persons and organisations to retain high-profile lawyers on their panels. Because the Pakistani legal system allows the lawyer to choose his clients and further mandates him to avoid a conflict of interest, by being so engaged, these lawyers in effect become unavailable to all other persons who may wish to avail of their services.
In fact, persons and organisations often employ this strategy for the express purpose of putting the most competent lawyers out of circulation.
And lawyers themselves use their hefty retainers as a reasonable excuse for refusing smaller clients and more complicated cases. This in effect narrows the path to justice for those who need it most.
Interestingly, however, it is not only a would-be client who would benefit from the cab rank rule. Lawyers would benefit because they would not have to explain their choices to society.
If the rule were in force, a lawyer would have had immunity from the wrath of his community or from social stigma if he chose to represent an unpopular client. And if asked why, he could simply point to the rule and say — correctly — that he is bound by his professional duty to represent even a murderer because every person is innocent until found guilty by a court of law and, therefore, entitled to legal representation.
Most importantly, however, in allowing everyone to obtain legal representation of their choice and thereby ensuring that everyone is equal before the law, the cab rank rule not only promotes the integrity of the legal system but also upholds the rule of law itself.
The writer is a barrister and an advocate of the Supreme Court of Pakistan.
Published in Dawn, January 17th, 2016
