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In November, I will be attending the International Bar Association (IBA) Annual Conference in Paris – always an excellent opportunity to debate and share our common challenges as legal professionals. Of particular importance on this agenda will be further discussion of ‘lawyers as gatekeepers’.
We, and the other referral Bars of Ireland, Scotland and Northern Ireland, remain deeply troubled by the idea that lawyers have a role as gatekeepers in excluding people from access to legal advice and representation. In our jurisdictions the cab rank rule means we have a positive duty not to judge our clients. In other jurisdictions and in other professions there is no such positive duty to take all comers. But the idea that there might ever be a positive duty on lawyers to pass judgement on their clients, and to turn away those who are somehow not up to scratch, surely is not right, at least when the services which the client wants are advice and representation (as opposed, perhaps, to purely transactional services). That is the essence of the gatekeeper agenda, which has been characterised as asking what lawyers should do in relation to clients whose conduct is ‘lawful but awful’. But I am yet to hear a clear explanation of how ‘awfulness’ is to be assessed. Surely it can never be right that lawyers be required to pass moral or political judgements about their prospective client or their client’s cause. Judging is for judges or juries, not for us.
If I were a Uyghur Muslim looking for a local lawyer to represent me in a challenge to the way my own state was treating me, I would be very disappointed if the lawyer could point to some IBA guidance suggesting that lawyers had a duty to decline to act for me if I had behaved in way which the lawyer, or the state, disapproved of.
Good news from the Legal Services Board (LSB)’s October Board meeting: the LSB agrees with the Bar Council that the cab rank principle is an issue for the Approved Regulator (ie the Bar Council acting through the Bar Standards Board (BSB)) and the profession it oversees. The cab rank rule has unexpectedly attracted a lot of interest during the past year. I have been heartened by the many messages of support from members of the Bar who hold the rule sacrosanct. And I hope that the media focus has, in some part, furthered the public’s understanding of some of our core professional principles that support access to justice.
Last month the BSB launched its consultation on the regulation of barristers in chambers. Chambers are not themselves regulated, but we know that barristers’ working lives – and the services that clients receive – are affected by what happens at a chambers level, so it’s important that chambers have access to good practice and resources.
In my inaugural address in January, I announced the Bar Council’s plan to develop better online signposting to best practice resources. A working group has been exploring how best to do this and I’m very pleased with its planned next steps for delivering improved online resources and guides in the most accessible and useful ways for chambers’ professionals and barristers. There will be more information on the Bar Council website.
This year the Bar Council’s annual earnings report has been updated and produced with greatly improved analysis, alongside an updated toolkit to help translate the data at a chambers level. In terms of gender there is a clear and pervasive overall disparity in earnings between men and women. It is particularly troubling that this difference seems to arise in the very early years of practice. We must all do more to understand the cause of these differences. That starts with collecting, analysing and understanding the data. Good sets are already doing this, learning about who is thriving and who needs support to make sure everyone has the same opportunities to advance their career.
Pro Bono Week (6-10 November) is an opportunity for the legal professions to highlight the fantastic work that takes place to give free legal help to those in need. The Bar Council is using the opportunity to highlight the importance of securing pro bono costs orders, where appropriate, to provide vital funds through the Access to Justice Foundation. And as a former chair of the Free Representation Unit, I must flag a personal highlight of this year’s Pro Bono Week: FRU’s 50th anniversary celebrations, held at 39 Essex Chambers on 8 November. FRU is as important today as it ever was.
Finally, the deeply disturbing news from the Middle East surely reminds all of us of the importance of a rules based international order which, among other things, constrains what forms of aggression are permissible, even in times of war.
Nick Vineall KC returned to practice at 4 Pump Court after his term as Chair of the Bar 2023. Prior to that, he was Joint Head of Chambers at 4 Pump Court and sat as a Deputy High Court Judge. Nick practises in commercial, construction and financial services law. He was awarded ‘Social Mobility Bar Champion of the Year’ at the Legal 500 ESG UK Awards 2024.
In November, I will be attending the International Bar Association (IBA) Annual Conference in Paris – always an excellent opportunity to debate and share our common challenges as legal professionals. Of particular importance on this agenda will be further discussion of ‘lawyers as gatekeepers’.
We, and the other referral Bars of Ireland, Scotland and Northern Ireland, remain deeply troubled by the idea that lawyers have a role as gatekeepers in excluding people from access to legal advice and representation. In our jurisdictions the cab rank rule means we have a positive duty not to judge our clients. In other jurisdictions and in other professions there is no such positive duty to take all comers. But the idea that there might ever be a positive duty on lawyers to pass judgement on their clients, and to turn away those who are somehow not up to scratch, surely is not right, at least when the services which the client wants are advice and representation (as opposed, perhaps, to purely transactional services). That is the essence of the gatekeeper agenda, which has been characterised as asking what lawyers should do in relation to clients whose conduct is ‘lawful but awful’. But I am yet to hear a clear explanation of how ‘awfulness’ is to be assessed. Surely it can never be right that lawyers be required to pass moral or political judgements about their prospective client or their client’s cause. Judging is for judges or juries, not for us.
If I were a Uyghur Muslim looking for a local lawyer to represent me in a challenge to the way my own state was treating me, I would be very disappointed if the lawyer could point to some IBA guidance suggesting that lawyers had a duty to decline to act for me if I had behaved in way which the lawyer, or the state, disapproved of.
Good news from the Legal Services Board (LSB)’s October Board meeting: the LSB agrees with the Bar Council that the cab rank principle is an issue for the Approved Regulator (ie the Bar Council acting through the Bar Standards Board (BSB)) and the profession it oversees. The cab rank rule has unexpectedly attracted a lot of interest during the past year. I have been heartened by the many messages of support from members of the Bar who hold the rule sacrosanct. And I hope that the media focus has, in some part, furthered the public’s understanding of some of our core professional principles that support access to justice.
Last month the BSB launched its consultation on the regulation of barristers in chambers. Chambers are not themselves regulated, but we know that barristers’ working lives – and the services that clients receive – are affected by what happens at a chambers level, so it’s important that chambers have access to good practice and resources.
In my inaugural address in January, I announced the Bar Council’s plan to develop better online signposting to best practice resources. A working group has been exploring how best to do this and I’m very pleased with its planned next steps for delivering improved online resources and guides in the most accessible and useful ways for chambers’ professionals and barristers. There will be more information on the Bar Council website.
This year the Bar Council’s annual earnings report has been updated and produced with greatly improved analysis, alongside an updated toolkit to help translate the data at a chambers level. In terms of gender there is a clear and pervasive overall disparity in earnings between men and women. It is particularly troubling that this difference seems to arise in the very early years of practice. We must all do more to understand the cause of these differences. That starts with collecting, analysing and understanding the data. Good sets are already doing this, learning about who is thriving and who needs support to make sure everyone has the same opportunities to advance their career.
Pro Bono Week (6-10 November) is an opportunity for the legal professions to highlight the fantastic work that takes place to give free legal help to those in need. The Bar Council is using the opportunity to highlight the importance of securing pro bono costs orders, where appropriate, to provide vital funds through the Access to Justice Foundation. And as a former chair of the Free Representation Unit, I must flag a personal highlight of this year’s Pro Bono Week: FRU’s 50th anniversary celebrations, held at 39 Essex Chambers on 8 November. FRU is as important today as it ever was.
Finally, the deeply disturbing news from the Middle East surely reminds all of us of the importance of a rules based international order which, among other things, constrains what forms of aggression are permissible, even in times of war.
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