The ‘Cab Rank’ Principle: Can Barristers Refuse a Brief?

The first time I ever heard of this principle was when I read about it at The Australian Professional Liability Blog a few days ago.

Stephen Warne wrote about how a political candidate in an Australian state election took a cheap shot at an opponent who happened to be a very respected barrister.

The barrister was running on a position against using brown coal as a means of generating energy.  The opponent criticized that position, pointing to the fact that the barrister once accepted a brief on behalf of a brown coal company.

What the opponent failed to point out, however, was that in Australia, a barrister is ethically bound to take any brief offered, if he is not in a conflict of interest, the brief is within his skill set, and the solicitor is willing to pay the barrister’s usual fee.

I had no idea.

Australia is far from unique in this respect: the rule also applies to barristers in the United Kingdom, among others.

I can certainly appreciate the reasoning behind the rule – it prevents unpopular litigants or causes from going without representation in the courts.

Coming from a jurisdiction where the rule does not apply, I would feel as though my choice of client was being dictated to me to some extent.

I would also be concerned in those cases where a barrister might have the required skill set, but finds the case morally repugnant. One example might be a barrister whose skills lie in criminal defence, but who finds cases involving crimes against children morally repugnant, and then becomes bound to take on a case on behalf of an accused charged with that type of crime.

The rule apparently has a long history, so maybe it’s a North American bias.

Nevertheless, I’d be interested in hearing from lawyers in cab rank jurisdictions about how it would apply in that kind of situation.