the cab rank rule
the right to contract
The Cab-Rank Rule
The cab-rank rule is the law in Australia and most other Commonwealth countries which mandates a barrister not to deny a brief (an offer of work to appear in court) from any applicant. Obviously the case must be in the barrister’s field of expertise, there must be no conflicts of interest, professionally or private, and the applicant must be willing to pay his/her standard fee. That the barrister may think the applicant is guilty or at fault, or that he or his cause is highly disreputable, is of no consequence.
Section 17 Legal Profession Uniform Conduct (Barristers) Rules 2015 made under the NSW Legal Profession Uniform Law
Reasons given for Implementation of Rule
Ensures that all litigants are able to obtain the services of a barrister;
Protects barristers from any adverse consequences that could arise from accepting a particular brief. (e.g. ‘Why on earth did you defend that rapist?’)
“[otherwise] it would be difficult to bring unpopular causes to court and the profession would become the puppet of the powerful.”
Wraith (1988) 165 CLR 543 at 580.
J Gerard Brennan
A Good Idea or Not?
Considering not all liberal democracies throughout the world entertain this rule while in all probability being aware of it, it might be reasonable to suggest that the reasons for their existence in Commonwealth countries are not universally accepted. The following are issues to be considered when evaluating this long held concept.
Freedom of Association
It is interesting that for a profession that allegedly practices under the auspices of ‘human rights’ and ‘doing the right thing’, so little is made of a manifestation of the cab-rank rule being that law abiding citizens in a liberal democracy are being forced, through no fault on their part, to engage in certain work that they may not wish to. Apart from military conscription in times of war, it is hard to think of any other profession where the practitioner does not have complete freedom to engage, or not engage, with whomever they so please. Apart from exigent circumstances where a doctor is compelled to continue aiding a patient he/she has initially offered to help, even doctors cannot be forced to treat a patient not theirs.
The best choice
Supporters of the cab-rank rule attempt to justify their position by claiming accused people might be turned away from barristers’ chambers because they are at least one of the following:
charged with a horrendous crime,
odious people irrespective of guilt or innocence,
not even of any apparent immorality, but simply someone with whom one happens to take a personal dislike.
The problem with this argument is the false assumption that because the first chamber might reject them, then all other chambers will similarly do so.
Without the cab-rank rule, if someone in search of a legal representative for trial was knocked back five times before finally being accepted, he would in all probability be profiting from his travails. Assuming the final chambers did not accept the brief merely because they were desperate for work, then the reason they accepted, while others passed, would be a preference to take on the particular situation of the applicant’s brief. This being perhaps because of experience in that field, or the barrister’s academic interest in law reform in that direction, or the firm happening to possess an empathy with that type of client.
Anyone who knows anything about industrial psychology would know that the better worker is the one who enjoys, or at least has a greater interest, in what he/ she does. This connection to a simpatico law firm (which would benefit both the firm and client) would rarely happen in the existing system where an applicant usually ends up with the barrister behind the first door he knocks.
A Quarrel of Lawyers
The most obvious reason to abolish the cab-rank rule is the simple fact that in today’s world with the growth of law schools, within and separate from universities, there is a surfeit of lawyers and barristers, and, to quote:
British Judge John Hack,
Queensland Senior Counsel Dan O’Gorman,
“The argument that the cab-rank rule may be abused by wealthy clients able to tie up all of the best barristers with experience in a particular area by, for example, being the first to brief all of the best barristers with experience in a particular area cannot be a valid argument today because the competition between barristers is now so much greater than was the case. There are now thousands of barristers practising throughout Australia with a right to appear throughout the whole of Australia.”
‘Hearsay: The Journal of the Bar Association of Queensland’, August 2016
the Law Society of England and Wales, together with The Bar Council, in 2010:
But he’s obviously guilty
Anyone familiar with the OJ Simpson murder trial would be surprisingly na´ve not to believe Simpson did it. On informed of his imminent arrest but unaware of the evidence against him, he took flight and contemplated suicide with a handgun pointed to his head, something hardly the action of an innocent man. After being arrested one might think he would have trouble obtaining representation considering the totality of his actions. Yet in short time he ended up with what was then described as the “dream team” of American high profile lawyers: Johnnie Cochrane, F Lee Bailey, Alan Dershowitz, Robert Kardashian, as well as five other lesser known figures. Not bad for a wife killer and multiple murderer.
When Johnnie Cochrane et al got their felonious client acquitted, they may well have earned the enmity of many right-minded citizens following the case, however another manifestation of the verdict was their increased reputation in their chosen career. For those later charged by the police with a terrible crime, what better representation to get than someone who can get even the guilty acquitted. Well known American trial lawyer F Lee Bailey rose to fame from representing serial killer Albert DeSalvo, better known as the Boston Strangler.
Representing the Truly Abhorrent
We are told that abhorrent people or causes must be granted the first barrister applied for, otherwise a lack of representation will mean an injustice.
Of course the problem with this argument is that if you, as a barrister, find the applicant or his/her cause abhorrent, then taking on the representation isn’t going to change your feelings. The task of defending an accused in court is, obviously, highly skilled. It is not like the task of a mechanic changing the piston rings on a car engine. With that, as long as you take your time, follow directions minutely, and carefully manipulate all the parts, then you cannot but successfully accomplish your goal. On the other hand, the task of a defence barrister is to study all the prosecution evidence in the hope of finding faults, cross examine witnesses so as to possibly find uncertainty in their beliefs, and eloquently present a summing up of the facts so as to convince the jury of reasonable doubt. This is something that is not guaranteed merely because the practitioner takes his time and tries to be methodical. No matter what he does or says, if deep down he is repulsed by whom or what he is representing, then it is reasonable to believe that unconsciously his investigations might not be as thorough as they otherwise should be, and in court some members of the jury might identify his disdain, especially in the summing up, and thus be less than convinced by his approach.
The simple answer to this problem is to let the applicant knock on all doors until finding agreeable representation, rather than someone who had the misfortune of an empty calendar and wasn’t prepared to lie about it.
Knocked back by everyone
It is truly hard to believe that a situation could arise where someone of ample means would still be denied representation by everyone. A common experience of newly welcomed barristers to the bar is that they spend months tutoring at law schools, doing para legal work, and otherwise trying to make ends meets while anxiously waiting for their first brief.
Being indoctrinated with the ‘every person is innocent until proven guilty and has a right to representation’ mantra from past law lecturers, are we to imagine barristers starting off their career by refusing the fees they dreamt about in the four years of law school because their prospective client might well be guilty of an unsavoury crime? It is hard to imagine that they, or other elderly seasoned barristers who have experienced almost everything in their career, should abstain from accepting any briefs in a field where they were knowledgeable.
None of the 51 jurisdictions of the United States follow the cab-rank rule and lawyers who can appear in court have discretion as to whom they choose as their clients. Among those chosen, and wealthy enough to afford the services, have been:
O J Simpson
responsible for the Oklahoma terrorist bombing which injured over 600 people and killed 158, including occupants of a child care centre. Chris Tritico, not a legal aid lawyer, thought it was “the chance of a lifetime” to be on McVeigh’s legal team.
John Wayne Gacy
Serial killer responsible for the murder of 17 men or boys, as well as sex offences, necrophilia, dismemberment of body parts and cannibalism. Legal services were paid for by his father.
How things should be
In the worst case scenario where universal denial of representation to an applicant might actually happen, would not an alternative to the cab-rank rule be instituted whereby, upon application to the court, a randomly chosen barristers’ chamber be directed to supply representation at their standard rate?
This rare -if ever- occurrence would certainly be superior to perennial situations where barristers are forced to either lie about their available allocations, or represent clients they don’t particularly like while those clients end up paying a lot of money to legal practioners they don’t realize are not that interested in their cause.
The Right to Contract
A contract is a legally enforceable agreement, either written or oral, to commit, or refrain from committing, an action, between two or more parties desiring to obtain a tangible or intangible benefit.
Not to put too fine a point on it but Anglo-American law now says that some people are either too stupid, lazy, or under too much pressure from their personal circumstances, to consider the possible manifestations of any agreement they decide to commit themselves to.
And so, to accommodate this type of person who finds he/ she no longer wishes to be bound by the contract’s terms, upon application the court will review the original contract and possibly modify it to what aligns with the judge’s value judgements on how the original terms of the contract should have been written.
In truth, not all contracts are created correctly and some can be subject to legitimate invalidation. Such reasons could be:
a party under the influence of drugs or alcohol at time of signing,
a party under age, or ruled mentally incompetent,
a party, without legal representation, under the influence of an authoritative figure (selling property to your guardian/lawyer/church minister).
genuine misunderstanding or ignorance of the full terms of the contract.
[refusing to read the contract one signs is not justification, but having subjective or ambiguous terms, or important terms mentioned in the fine print is.]
no intention to be a serious contract (usually when a verbal agreement, and undertaken in a social setting when one party makes offers on the outcome of an unlikely event)
an absence of consideration (no quid pro quo).
duress. (Luca Brasi holds a gun to your head and tells you either your signature or your brains will end up on the contract form in front of you.) Also, less drastic actions wherein one party threatens the other with a criminal or tortious action or a refusal to fulfill an obligation, so as to induce agreement.
However, in modern times, contracts have been invalidated (or worse, not invalidating it but simply had some of the terms changed), not because of instances relating to the signing but due to the terms of the contract itself, the most fundamental reason why the parties signed in the first place.
There is, of course, one blatant injustice in the changing of terms post factum to accommodate the lazy or the irresponsible. As any first-year law student would be able to inform a judge presiding over a contract dispute trial, the most fundamental definition of a contract is “the meeting of the minds” where, mostly after a discussion, two parties finally come together, and by shaking hands, agree to all the terms of the contract in the realization that this is the best deal they are going to get. If, after long discussion, neither party could make ‘that final step’ to meet the other party’s terms, then there simply would be no agreement and thus no contract, with parties walking away to pursue alternative options.
Hypothetically what action might be justified by the judge is to turn back time to the signing of the contract, declare it shall not be signed, and thus allow the parties the option of further negotiations or alternative options. However, what mostly happens unfortunately is that after one party has, over a period of time, received most of the benefits of the contract and realize it is now their turn to pay, they decide they no longer wish to be held to what they originally obligated themselves to.
Violating whose conscience?
The essence of the law that violates the principle of the right to contract is the term from Equity law known as unconscionability, a subjective term if ever there was one. To quote Section 20 of the Australian Competition and Consumer Act 2010 (Clth) “A person must not, in trade or commerce, engage in conduct that is unconscionable…”
To its credit, the ACC act gives examples of what actions may be deemed to be unconscionable. At least three of these stand out for comment.
I now want what the other guy got
“…for the purposes of [identifying unconscionability] the court may have regard to…
(e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier;” sect.22 ACC Act 2010
So the contract is signed, sealed and delivered, you have duly received your goods, and after that, when the invoice arrives in the mail, you decide you will challenge the contract because another purchaser received the goods from someone else at a lower cost.
To begin with, there may be a lot of reasons why another supplier charged less:
sales were beginning to slow down and as she had a full inventory she feared she might end up with unmovable stock;
she gives a discount to pensioners or those who supply to pensioners, or war veterans or just some other category of people she happens to express an empathy for;
she was operating a new business and trying to establish a beachhead in the market by offering opening discounts.
the original supplier normally gives everyone a 10% discount but this particular client was so difficult to deal with, in his case the supplier went with the standard advertised offer.
But putting all that aside, why would there be an injustice anyway when one supplier charges more than others? The customer saw the offer for the product he wanted, estimated it to be within his price range, and accepted the offer. How can there be an injustice in getting something at a price one asked for, especially when no force or fraud was involved?
but I was forced to
“…for the purposes of [identifying unconscionability] the court may have regard to…
(d) whether any undue influence or pressure was exerted on… the customer …by the supplier”; sect.22 ACC Act 2010
In a UK case1 of 1937, a Joseph Wetton obtained a truck on hire purchase after forging the signature of his father, reputable stone merchant William Wetton, as guarantor. Payments almost immediately fell behind, and on finding out the truth, the finance company approached the Wetton family to sign a new contract guaranteeing the loan. It declared that if it did so there would be no need for the company to report the errant son to the police for criminal fraud. The family, without the knowledge of the patriarch, signed because the elder William was gravely ill and it was thought he might not survive the shock of his son’s pending prosecution, a detail also known by the finance company. Unfortunately for the finance company, the regularity of payments did not increase and it was eventually forced to take the family to court to enforce the new contract. The decision of the court, as explained by a Justice Porter, was that, due to the “undue influence” of imminent prosecution of the son, the family “were never free agents” when signing, and thus were allowed to repudiate the contract.
It is interesting how the law in these situations has trouble in differentiating between the carrot and the stick in identifying undue influence. Originally this undue influence concept was based on criminal threats or otherwise types of malicious obstacles placed in the path of the victim by the other party. Justice Porter’s judgement would have been correct if the finance company had threatened to “stitch up” their son with a false prosecution for something he didn’t do. But the guilt had nothing to do with the company and everything to do with the son, and his prosecution may well have been the death penalty for the father, a sentence the company offered to help to prevent, in exchange for the very reasonable consideration of having their money returned to them. It is hard to appreciate how the victim in this scenario is a family who were fully aware of all the facts and who could have simply said no to the offer, and the transgressor is someone, not after an undue benefit, simply trying to get a debt paid.
One is tempted to wonder if it was the original intention of the family to make payments on the loan only until the father’s health returned and then to break their promise, in which case their malfeasance would not only be dishonouring a contract but also obtaining a benefit by deception. The irony in this situation is that if the company had instead abided by the values evinced by Justice Porter, they would have written off the bad debt as a loss, duly reported the forgery to the police, and then within a short period read in the paper of the death of the innocent William Wetton.
but she’s more powerful than I
“…for the purposes of [identifying unconscionability] the court may have regard to…
(a) the relative strengths of the bargaining positions of the supplier and the customer”; sect.22 ACC Act 2010
One of the strangest reasons a contract can be invalidated or “adjusted” is that one of the parties was in an alleged stronger bargaining position at the time of signing. As long as no guns were pointed at one another, it is hard to image how someone can somehow be in position where they are at a disadvantage with respect to the other party.
It is interesting to note that in chapter 1, section 2, the ACC act goes to the trouble of defining over 120 terms used in the legislation yet fails to mention either “bargaining power” or “bargaining positions”, both being used repeatedly in the act.
Apparently the term ‘bargaining power’ relates to the concept of a buyers’ (or sellers’) market. A buyer’s market is the situation where there is a glut in production of a certain commodity, and when the purchaser comes along to the literal or metaphorical market, he is engulfed by sellers trying to offload their produce at whatever price they can get, in the knowledge that there is more stock for sale than demand by consumers. In such a situation, it is said that the buyer can “dictate” terms of sale. A sellers’ market is the opposite where there are too few products for too many consumers. A similar, but not exactly the same, situation develops with the circumstances of a monopoly (a market with only one seller, thus a seller’s market) and a monopsony (a market with only one buyer). Allegedly this “power” can also relate to a party who is a bulk buyer who can thus has the advantage of being able to move a considerable amount of the seller’s stock in one transaction.
If a contract is to be ruled invalid because of the alleged domineering position of one of the parties, then this would seem to raise a number of concerns:
If a contract for the purchase of goods has been successfully challenged in court because the seller, using his “superior bargaining power” was able to “dictate” to the buyer too high a price, then the question remains, how does the court decide what is the “fair” price? Can expert economists working with the most up to date computer programs somehow work the true price of a crate of bananas?
In business one very important thing is stability and peace of mind: knowing that, for example, you will receive so much for your product upon which you can base current and future expenditures. Through the history of people doing business, the contract has been that most useful tool to guarantee that future services, sales or purchases will occur, rather than just depending upon happenstance. That a party can act in completely good faith in signing a contract and yet later be told by a court that the terms will change is an attack upon that stability.
Suppose a situation where a cyclone passes through and causes great damage to a coastal city. The aftermath would be, amongst other things, a great demand for carpenters to rebuild.
A demand such that there would be more work on offer than carpenters to accommodate the demand. It would not be long before those who had a greater need for rebuilding, such as businesses, would be offering more money for the tradespeople than those who simply wanted their accommodations rebuilt. As the bidding war between simply residents and businesses, and between high and low turnover business, increased, the carpenters would find themselves in what the law would call, “a superior bargaining position” and thus be able to exploit their situation by “dictating” high prices and conditions. But how could they do otherwise? If they are not to take advantage of their situation, how are they to decide which of the potential clients in front of them waving wads of cash are they to accept? Does the law say it is better to discriminate on the criterion of one’s own personal preferences and prejudices rather than accept the highest bidder?
In an alternative situation, what if imported pre-fabricated homes from China became very popular. With the resultant lower demand for traditionally built homes, so many carpenters chasing so few jobs would, in contract negotiations, then find themselves in a very much “inferior bargaining position”. But for them there would be no recourse as there would be no one to sue.
Is it not reasonable to accept that the highs and lows in all markets are not designed malevolent acts, but simply nature, and when some must suffer with the downturns, it is only reasonable to allow the same or others to profit whenever the winds of change benefit them.