First come, first served: Revisiting the cab rank rule

By Gavin & Brooke MacKenzie Summer 2017

First come, first served: Revisiting the cab rank rule

 

Lawyers agree about the importance of competent legal representation for accused persons in criminal matters even when the charges relate to the worst offences imaginable. But do Canadian lawyers have any responsibility to represent unpopular parties in civil cases?

In Britain, barristers are bound by the “cab rank” rule: barristers, like taxis, must accept work on a ‘first-come, first-served’ basis. Barristers must accept matters appropriate for their experience irrespective of the client's identity, the nature of the case, or “any belief or opinion which [they] may have formed as to the character, reputation, cause, conduct, guilt, or innocence of the client”.

Canadian lawyers are not subject to the cab rank rule per se. We are entitled – in criminal and civil cases alike – to decline a retainer because we disagree with a client’s cause or conduct, but our regulators discourage this.

The Model Code of Professional Conduct acknowledges a “right to decline representation”, but encourages a cab rank approach, stating: “Generally, a lawyer should not exercise the right merely because a person seeking legal services or that person's cause is unpopular or notorious...”

The cab rank rule is designed to ensure that even unpopular parties can secure legal representation, and that lawyers who act for them are not unfairly criticized for doing so.

The courts, however, distinguish between lawyers representing unpopular parties, and lawyers advocating unreasonable positions. Indeed, lawyers who advance unreasonable positions may be vulnerable to costs awards against them personally.

In 2016, the Ontario Court of Appeal upheld an $84,000 costs award in Best v. Ranking against a plaintiff’s counsel personally on the basis that he had allowed his client to take unreasonable positions.

The Court rejected counsel’s argument that he was being punished for taking on a weak case. It highlighted the vexatious nature of the proceeding, and held that “the fact that a lawyer starts an action which is unlikely to succeed is not, on its own, a basis to award costs personally against that lawyer.”

But it may be challenging for counsel to draw the line between a weak case and one that may be deemed “vexatious”.

Our professional responsibilities as advocates require us to “raise fearlessly every issue, advance every argument and ask every question, however distasteful, that [we think] will help the client’s case and to endeavor to obtain for the client the benefit of every remedy and defence authorized by law.”

Our duty of loyalty includes a duty of commitment to the client’s cause – without a caveat that we must believe this cause to be a reasonable one. Lawyers may find it difficult to fulfill this duty if wary of costs being ordered against them for acting on their client’s “unreasonable instructions”.

This concern is best reconciled by the principle that lawyers are not mere mouthpieces for their clients. Where a lawyer advances her client’s unpopular position forcefully, but in good faith, that advocate is acting in accordance with her professional obligations, and ought not face adverse cost consequences personally.

Where a lawyer argues a frivolous position that her client wants to put forward, without regard for the facts, the law, or her professional responsibilities, that lawyer is not an advocate, but a mouthpiece – and may properly be deemed to have incurred costs without reasonable cause, warranting an order of costs against counsel.

Also worth noting, the Supreme Court of Canada’s recently ruled in Quebec v Jodoin the high threshold for an award of costs against counsel personally is met where the lawyer has brought “an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system”.

Interestingly, the cab rank rule appears to be fading. The Law Society of England and Wales has questioned whether it “remains a necessary and proportionate rule for the Bar at a time when there is increasing competition for advocacy services”.

It observed: “We note that solicitors are not subject to the same rule but that there are no cases where individuals with properly funded and arguable cases have not been able to find solicitors to represent them”.

Our experience in Canada suggests the Law Society of England and Wales is correct: Paying clients rarely struggle to find representation because their position is unpopular. The real obstacle clients face in securing legal representation is an empty wallet – not an unpopular position.

Gavin MacKenzie and Brooke MacKenzie practise together in Toronto as MacKenzie Barristers, 
with a focus on civil appeals and professional responsibility issues. You can find them at 
www.mackenziebarristers.com.

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