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In New Zealand, lawyers are theoretically obliged to be available to clients on a first-come first-served basis, like a taxi waiting in a taxi stand. This obligation is known colloquially as the ‘cab-rank rule’, and similar formulations can be found in the rules of the legal profession in other countries also.

In its detailed & official formulation[1], the rule specifies limited circumstances for which you can refuse a client. These circumstances include your workload, the presenting legal issue being outside your area of expertise, and the client not being able to afford your fees. (Elsewhere in the professional rules governing lawyers is a requirement that fees be “reasonable” - an obligation I will examine on another occasion if I have the time.)

The rule also specifies grounds under which refusal is impermissible. These disallowed grounds are any of the listed prohibitions under the Human Rights Act 1992 (e.g. discrimination on the basis of sex, gender, political opinion, disability, ethnicity, etc), any personal characteristics of the prospective client, and the merits of the case.

Justification

The reasons for the cab-rank rule are well-established.[2] Perhaps the most basis justification of the cab-rank rule flows from the acknowledgement that access to legal representation is a crucial right of individuals, and in fact is necessary for our adversarial system of justice to work. In a society in which there are legal frameworks & implications regarding almost every action, individuals often need expertise (their own, or more commonly that of a specialist advocate) to navigate the jargon of the jungle that is ‘the law’.

Access to legal assistance thus should not be fettered by the morality or aesthetic preferences of the professionals (i.e. lawyers). If a lawyer could refuse a client based on their political views or their social group, then those espousing unpopular views or from a disliked minority may be denied legal assistance. In many cases, these marginalised groups would need legal assistance the most in terms of asserting their rights vis-a-vis the majority community.

The perceived short-comings

In practice, the cab-rank rule is difficult to enforce. It is understood, if not tacitly condoned, that workload is used as a convenient and tactful excuse for turning away unsavoury clients. There are few, if any, complaints from individuals that lawyers have breached the cab-rank rule to their detriment.

Issues of proof are also cited as a problem with the rule, as many of the grounds for refusal are impossible for the prospective client to evaluate.

Another difficulty with the cab-rank rule that is discussed academically is the associated requirement on the lawyer to be morally neutral. This notion of a lawyer is sometimes described as a “hired gun”. As long as the prospective client is not asking for something illegal, or an abuse of the court process, the lawyer is not allowed to impose her moral judgment on the client. The client is autonomous, and the lawyer is not, but rather is merely an agent, or ‘learned friend’. For a price, of course.

The real problem

In my view, the cab-rank rule ignores the financial difficulties that most people have with accessing a lawyer. This hurdle - not political views or being part of a minority - is the real barrier that most people face when they need legal help. Coupled with the fact that pro-bono or community service work is not required of lawyers in NZ (as it is in the States), individuals seeking representation must rely on state services or NGOs to fulfil their requirements. For any equal access to the law, then, these state and NGO services must be available & functioning to all who can’t afford a lawyer from the taxi stand.

The two main ways people get legal representation (apart from paying the ‘reasonable fees’ of a regular lawyer) are through Legal Aid, and community law centres.

Legal Aid is a government-managed scheme to provide legal assistance to those who cannot afford a lawyer. It is granted based on income and assets, and in most cases individuals granted Legal Aid will be required to pay back a contribution on a weekly basis. This equates to a government-subsidised lawyer, or (more specifically, for those assessed for repayments) a government loan on more lenient terms for a cheaper lawyer[3]. Not all lawyers make themselves available for Legal Aid work[4], and there is some feeling in the community that Legal Aid lawyers are ’second-rate’. This may be true of some lawyers undertaking Legal Aid work, but a broad critical brush is unfair to many skilled, caring & passionate lawyers who do Legal Aid.

Community law centres are recognised under law to be organisations which meet “unmet legal need”. Their existence around NZ (26 around the country) provides a safety net for people who can’t get help anywhere else. Their main funding is not from the government, but through the interest on solicitor’s trust accounts. The government however benefits from community law centres as their work dulls somewhat the imperative on the state to ensure true universal access to justice.

Many people can’t afford lawyers at market rates, so the cab-rank rule is irrelevant to them. As long as lawyers are relatively free as a group to set their own “reasonable fees”, and are not compelled to undertake pro-bono work, there will be incredible pressure on back-up providers such as the Legal Aid system or community law centres to address the inequalities.

This needs to be clearly acknowledged both within the legal profession and by the relevant decision-makers.

[1] My commentary in the post is based on the Rules of Professional Conduct & Client Care which are coming into force in NZ on 1 Aug 08 (currently in draft format). The current version (7th edition) simply states in Rule 1.02: “A practitioner as a professional person must be available to the public and must not, without good cause, refuse to accept instructions for services within the practitioner’s fields of practice from any particular client or prospective client.” The requirements will be more specific after 1 Aug as an entire section (Chapter 4: Availablility to the Public and Retainers) comprising over two pages of rules will itemise the rules under this aspect. See the latest legal professional regulation documents from the NZ Law Society’s website.