(This is the second essay in Goutham Shivashankar’s two-part guest post series.)
This is my second post in response to Gautam Bhatia’s post on the “Ethics of Representation in an Adversarial Legal System”. The question we are considering is essentially this: ought a lawyer’s decision to represent a “morally unworthy client” or take on a “morally unworthy case” be subject to moral scrutiny? Bhatia argues that it should. I argue that it shouldn’t. In my previous post, I had provided a systemic justification for my position, which I will not restate here. However, I do wish to point out that the systemic justification I offered, makes no reference whatsoever, to the “cab rank rule”. Indeed, the cab rank rule is irrelevant to my analysis. This is significant, since Bhatia asserts in his post that: “Once you take away the “cab rank rule”, you find that there is nothing else to justify the moral and ethical insulation of representational choices.” Hopefully, I have offered something to fill in that void.
I suspect there may be other justifications for such ethical insulation that have no relation to the cab rank rule. For instance, an advocate is obliged, under law in many legal systems, to “fearlessly uphold the interests of his client by all fair and honourable means”. Would advocates be truly fearless in their representation of a case, if they are constantly second-guessing their decision to take up the case (for fear of public censure) in the first place? I doubt it.
In this post, however, I engage directly with Bhatia’s critique of the moral insulation extended to lawyers about their representational choices.
The Cab Rank Rule is not meant to be moral escape-hatch
A large part of Bhatia’s post is devoted to interrogating the cab rank rule. He begins with the premise that all persons ought to be held ethically and morally responsible for the actions they choose to take (or not take). People in other fields are not morally and ethically insulated from their actions merely because they are “just doing their jobs”. Why should lawyers be any different? If this rule were to be displaced for lawyers, he argues, then there must be something special about them to warrant the exemption. This “something special about the legal profession”, which Bhatia states to be usually proffered by those in favour of the moral insulation of lawyers’ representational choices, is the “cab rank rule”. He states, correctly, that the cab rank rule entails that “a lawyer blinds herself to the character of her client.” Then he adds, rather strangely and stating no authority, that: “[T]he logic of the “cab rank rule” is simple. If lawyers have no real choice in whom they represent (that is, if the system commits them to this course of action), then naturally, they cannot be held morally responsible for the consequences that follow from any specific case that they do.”
It appears that to Bhatia, the dominant purpose of the cab rank rule is to give lawyers an escape hatch from moral scrutiny. It’s a bit unclear why he thinks this to be the case. Everything suggests to the contrary. The rule is, in fact, designed with interest of the litigant / client in mind (especially the “unpleasant, unreasonable, disreputable” sort of litigant), and not the interest of the lawyer. As Lord Pearce put it in Rondel v. Worsley  3 All E.R. 993:
“It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full hearing to be in the right.”
The cab rank rule, then, is designed to tie down barristers to unpleasant clients, with a view to giving even such clients a fair trial by ensuring they have good legal representation. The rule isn’t aimed at all at providing a moral escape-hatch to lawyers. That simply isn’t “the logic” of the rule, as Bhatia puts it.
The Cab Rank Rule is not amoral
The cab rank rule cannot be regarded as devoid of moral content, merely because it precludes a lawyer from refusing a brief based on the moral worth of a client or a case. On the contrary, the rule is to be regarded eminently moral for precisely this reason. By forcing a lawyer to accept even morally unworthy clients / briefs, the cab rank rule serves an underlying public good, i.e., the assurance of (good) legal representation for every litigant in society. The responsibility of delivering that public good, as it were, necessarily and logically falls on the shoulders of the legal profession. It is a collective responsibility that the profession owes to the public. For the profession to shirk that responsibility would be immoral. The cab rank rule is the means that the profession has devised to address that collective responsibility. But the cab rank rule has additional moral content. It also precludes individual lawyers from shirking their concomitant obligation towards other members of the legal profession to contribute to the discharge of the legal profession’s collective responsibility to society. In other words, the rule prevents individual lawyers from committing the morally reprehensible act of “free-riding”, as I will explain below.
To state my point differently, the “something special about the legal profession” that warrants a certain kind of ethical insulation for lawyers for the representational choices they make isn’t the “cab rank rule” itself, as Bhatia suggests. The rule is just the messenger, so to speak. The “something special” is what underlies and motivates the cab rank rule, i.e., (i) the need to ensure legal representation for all litigants; and (ii) to ensure that there is no free-riding with respect to discharging that collective responsibility of the profession. In a seminal and widely cited paper written for the Legal Standards Board in the UK on the cab rank rule, Prof John Flood and Morten Hviid state as follows:
Recall that as regards the merit of the cab rank rule the issue is whether a defendant or the public might struggle to find representation. Broadly speaking this market failure could arise for two reasons, either the fee is viewed as inadequate or the case is so unsavoury that no amount of compensation would bring forth a champion. The latter type one might expect to be high profile with considerable media attention where the defendant stands accused of doing something truly horrific.
Before moving swiftly on to focus on the financially motivated barrister, consider the obvious alternative that barristers are acting out of a concern for justice and the rule of law. In this scenario, the cab rank rule may be a way to avoid free riding. Even if all barristers hold the view that everyone should be represented, they might rather prefer it if someone else dealt with the unsavoury cases. One might wonder, to what extent, it would become obvious to the profession if someone chose to avoid what was seen as a collective responsibility. In that case, the consequent loss of reputation might be just as effective as the cab rank rule.”
At this point, it would be worth quoting from Bhatia’s post, just to contrast the difference in approach. Towards the end of his post, Bhatia asks:
Yes, someone will represent M.J. Akbar in his criminal defamation case against Priya Ramani. But it doesn’t have to be you, does it?
Yes. It does have to be me, if the case / client lands at my table (as opposed to me seeking them out, which I am barred from doing since lawyers are not allowed to solicit work in India). Why? Because I ought not be a free-rider. To be a free-rider is a morally deplorable act. Someone has to do the dirty work of dealing with morally unworthy cases / clients. It is not Bhatia’s case that these persons do not deserve legal representation. If I draw the short straw and a morally unworthy client / case lands up on my table, the morally correct thing for me to do, is to take up the case, and not pass the buck to another lawyer. What makes me so special that I can free-ride and not be that “someone” who does the dirty work? If there is a collective responsibility in the profession to ensure all litigants are represented, what makes me special to avoid contributing my fair share to the discharge of that collective responsibility?
The “illusory” Cab Rank Rule
Bhatia then asserts that the cab rank rule is anyway, an illusion. This, he says, is because the rule only requires lawyers to take up cases where the clients can pay “her usual rates”. Since lawyers routinely reject cases on the client’s inability to pay fees, he states that “affordability is little more than a proxy for lawyers selecting a certain type and character of client. And above all else, the simple issue is this: is a hierarchy based on personal wealth any more justifiable than a hierarchy based on (say) ideology?”. From this, he concludes, that “[T]he cab rank rule, therefore, cannot insulate lawyers from moral and ethical judgment.” What he seems to be getting at is this: if lawyers can selectively wriggle out of their obligations under the cab rank rule to represent inconvenient clients on the pretext of their regular fees not being offered, then lawyers ought not be allowed to take cover under that very rule for to justify their claim ethical insulation from their representational choices.
A few points are worth noting here. Firstly, Bhatia’s formulation of the cab rank rule does not apply in India. In India, the Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. The rule equivalent to the cab rank rule (Rule 11 under Section II titled “Duty to the Client’) states as follows:
An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which is at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.
Thus, In India, the rule, at least on paper, is that fees should be: (i) at par with the fees collected by fellow at par with the fees of his standing at the Bar; and (ii) the nature of the case. It is not the lawyer’s “usual rates” which determines whether he can wriggle out of taking up a case. This is material, since Bhatia’s objection seems to be that design of the cab rank rule allows lawyers to wriggle out of cases selectively on the ground that the client cannot afford the fees. The rule as formulated in India, as I understand it, will not allow this, since the fee limb of the rule is also pegged to the “nature of the case” and the fees of other similarly placed lawyers. It is also worth noting here that the fee exception to the cab rank rule isn’t designed to allow “wriggling out” of the primary obligation imposed by the rule. Rather, it is merely the effectuation of a different sort of relevant moral principle – that professionals ought to be commensurately remunerated for their experience and knowledge. Intuitively, there is nothing immoral about the fee exception. I do not see how it makes the cab rank rule any less moral as well.
Secondly, even in the UK, as per the latest Bar Standards Handbook, a barrister is entitled to reject a brief under the cab rank-rule if he is not offered a “proper fee” and the propriety of such fee is to be determined with regard to: (i) the complexity, length and difficulty of the case; (ii) the barrister’s ability, experience and seniority; and (iii) the expenses which the barrister will incur. This appears to have been the position even in the now-repealed 2013 Bar Standards Handbook.
Thus, at least on paper, both in India and the UK, the cab rank rule appears to place clear restraints on the ability of lawyers to reject cases on the ground of their fees not being paid. In India, this rule is admittedly observed only in the breach, but that ought not take away from the soundness of the rule itself.
Thirdly, this entire analysis of the cab rank rule being illusory arises only if the cab rank rule is intended to be or invoked as a moral escape hatch for lawyers. As I have argued, that was never the intent of the rule. Bhatia seems to be attacking a straw man.
But what indeed, of Ajmal Kasab and MJ Akbar?
Bhatia concludes by dealing with the argument that if the lawyers representing the Ajmal Kasabs of the world deserve ethical insulation from representational choices, then so too do the lawyers who represent MJ Akbar. Or more generally, if lawyers who represent alleged terrorists deserve ethical insulation from their representational choice, then so do lawyers representing ministers accused of sexual harassment. To Bhatia, this argument posits a false equivalence by ignoring an important distinguishing factor between the two cases. By his account, good lawyers must be allowed to represent alleged terrorists without suffering the cognitive burden of moral judgment over representational choice because terrorists are up against the powerful state’s criminal justice machinery. It is the David versus Goliath nature of the case, and the accused’s fight against entrenched power structures that justifies the moral insulation accorded to an alleged terrorist’s lawyer in his representational choice. According to Bhatia, the same does not hold true for MJ Akbar’s lawyer in the “Me too” saga because Akbar is top-dog in the relevant power structures, both by his position both as a privileged male in a patriarchal society and by his official position as a cabinet minister. In other words, Bhatia asserts that a lawyer deciding to represent Akbar is making a representational choice to take up a “morally unworthy case” that perpetuates prevailing power structures, whereas Kasab’s lawyer isn’t.
I have already addressed this issue in my first post. To state my case briefly, there is a systemic danger in linking the morality of a lawyer’s representational choice to take up a case with the moral worth of the case. This would have the systemic effect of funnelling morally unworthy cases to immoral lawyers, who would likely employ immoral tactics to win their cases. This is a bad outcome for society at large.
In conclusion, to my mind, it would be folly to subject castigate a law firm like Karanjawala and Co. on ethical grounds for their decision to represent MJ Akbar in his defamation case. For similar reasons, I believe Ms. Indira Jaising, for whom I have utmost respect and have looked up to in awe ever since I moved to the Supreme Court, has committed an immoral act by refusing to continue representing Tahlib Hussain. I do believe that on this occasion, she has been a moral “free-rider” by shirking her responsibility to the profession (and to society at large) to represent someone who in her eyes has become a morally unworthy client on account of the “Me Too” allegations against him. I realize these are very bold statements for a young lawyer to make in the prevailing times. I am very open to being shown as to why I am wrong.