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Traditions, symbols, and the challenges of researching the legal profession

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The English Bar sets great store by traditions and symbols. One of these, the cab rank rule, is considered above reproach. John Flood discusses from sociological and economic perspectives how the rule functions and why the Bar was unable to engage positively.

Image courtesy of interviewee. April 11, 2024

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This video video discusses the author's experience with the legal profession, particularly in relation to the cab rank rule, which mandates that barristers must accept any case in their field, barring certain exceptions. The author became involved with the Legal Services Board to conduct research on the care plan form, realizing there was little existing literature on the subject. Through interviews with barristers, he explored the complexities of the cab rank rule, which initially aimed to ensure all clients have access to legal representation but has since evolved.

The tradition, perceived moral superiority, and challenges faced by barristers in adhering to the cab rank rule are examined, revealing its limitations, especially for clients needing legal aid. The author criticizes the bar's exemptions from this obligation in less lucrative cases, suggesting that this undermines the very purpose of the rule.

The narrative also delves into the difficulties of conducting legal research, especially when findings challenge established practices or beliefs. The research faced backlash from the legal community, which often deflected attention from substantive critiques by attacking the author's credibility. Despite this, the author maintained commitment to transparency in research and emphasized the vital importance of ensuring access to justice. This video video ultimately highlights the need for ongoing legal research to address unmet legal needs and assess the efficacy of legal structures.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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Well, look, I've always been interested in,

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in the legal profession,

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and the law, both from a legal point of view

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and a sociological and anthropological point of view.

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And I think what happened here was that I became connected

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with a fairly new legal regulator at the time,

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called the Legal Services Board.

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And their job was to be an oversight regulator on,

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on the, the different aspects

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of the legal profession and the legal process.

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And they said, look, we need someone

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to do some research on the care plan form.

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I, I was a bit surprised

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because it, you know, it's one of those things which,

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yeah, everybody knows about it,

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but nobody really talks about it very much.

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But it, it seems that, the bystanders board,

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which is the regulator for the barristers,

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was thinking about making changes to it.

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And so they wanted to know more about it.

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And if what they did was they, they asked me and,

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and an economist, so it was kind

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of like a legal sociologist,

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and to look at the wall, do a kind of literature review,

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which we did in a day,

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because there was hardly any literature.

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So I went back and said, look, there's not much there,

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but if you like, I'd go out and do some interviews,

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and I can talk to the barristers Clarks, who, a lot

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of whom I know from my

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previous research on barristers Clarks,

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and we can get more fine grain detail about this.

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And, but, you know, the thing about the,

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the bar especially

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and the legal profession is it's very sensitive to research.

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Uh, and so the legal services regulator, in a way,

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the legal service board, the regulator, wanted to sort

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of put somebody in between them

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and the legal profession, that was me.

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I'm an academic, a professor, not that important really

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to, to anyone in a way.

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I don't really pose any threats or anything like that.

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So I was quite happy to do that

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because I've got nothing to lose, you know,

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and it's all research.

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And so, I went in and did my interviews and so on.

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Look, the Canberran rule is a rule

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that says every client should be able to get a lawyer,

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if you like, and, you know, whoever comes along first,

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like a taxi in a rank, that's the one you get.

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Um, but it's one of these rules,

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which the way it's written in, in the, in the handbook,

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the bar handbook is it's, it's the rule.

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And then there's several pages of exceptions

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and exemptions to the rule.

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So it's actually very difficult for anyone,

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who's not a lawyer to interpret the rule,

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to understand how the rule goes.

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Look, the rule never got off

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to a very auspicious start.

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So when Charles, I was being tried

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before he was beheaded,

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the government asked a particular lawyer to,

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prosecute him, prosecute Charles,

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which he did to his fullest ability.

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And of course, we know the result Charles was, executed.

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And, and then we had Oliver Cromwell.

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And then when Charles II came back,

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Charles II was a bit miffed at his father, having been,

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dealt with this way.

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So he went after the, the lawyer John Cook,

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who is now a judge, and

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said, you know, you shouldn't have done this.

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He said, well, no, I was asked

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to, my client was the government.

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Um, but the result for him was

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that he was hung, drawn and courted.

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Uh, so they didn't let that one go.

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Um, but it's one of those rules that's rolled on and on

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and on,

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and essentially it allows the bar to say, we are

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above other professions.

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We are above others

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because we have this obligation, this great moral,

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move towards helping people.

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Whether we do or not, that's another thing.

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Um, but it allows them to say, we should not be,

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dealt with in the same way as other professionals, whether

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that be doctors, solicitors, accountants, and so on.

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Um, and my argument was, yeah, well, you know,

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you put forward the cab rank call,

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but you know, it's very difficult to see

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it in its operation.

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Uh, it's quite easy to get out of.

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It's quite easy to avoid,

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and, you know, it doesn't really fit with the modern,

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era.

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So originally it was meant to be a way of making sure

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that the horrible client would get representation.

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So if you go back to the 1970s,

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there was some IRA bombers being, prosecuted,

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and it was impossible to get representation for them.

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And the bar had to step in

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and say, make some barrs to do it.

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The way it's gone today is

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that the more horrible the client, the more desirable

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that client becomes in a way.

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So that, you know, it was said to me that,

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because of the publicity that results from

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that, and I'll give you an example.

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Uh, when Rachel Books was being, prosecuted

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with the news of the world scandal, she fired,

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her legal team hired a new one

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because she'd negotiated a lower price,

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because suddenly the publicity value

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of her case was that much higher.

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Uh, and so what they were going to get from

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that was worth more than money, if you like.

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Um, a number of clerks I remember said to me that if Andes,

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Breck, the Norwegian Bomber

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who shot those poor children on the island had been in

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England, the lawyers would've queued up around the block to

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represent him, because the publicity would've just been

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enormous, you know, for that.

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So it's moved away from, you know, the type of client,

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if you like, any client can get representation now.

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It's now more to do with money.

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Um, and, and,

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and it really affects people who are on legal aid the most.

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So if you are, have a family law problem,

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criminal law problem, something like that,

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the bar has now said that, you know, we are not bound

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by the cab rank rule for those particular kinds of cases

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because the fees aren't good enough.

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Now, these are the people who need it the most.

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You know, they're the ones who really should be bound in

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with the cab back wall, but they're the ones which are

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excluded, which is a, a great, great shame.

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So I, I, I find it's, you know, it's one of those things

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that Clark can say, the fees are way too high,

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and the, the client just moves away.

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Um, but it also is to do with the fact that,

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clients can't shop for lawyers in a normal way.

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It's, law is a, what we call a credence good, you know,

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it, it, it's, it's, it's given to you.

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You get the results, but you have no idea of the quality

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of the work that's being done

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or the result or anything like that.

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Uh, you just have to believe it, if you like.

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And so the Cabra pool doesn't help in any of

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that situation whatsoever.

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They hosted it, they detested it,

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and, and they kicked up a hell of a fuss.

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So all the legal journals like the Law Society Gazette,

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council Magazine and what have you, were running articles.

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And essentially, most of the attacks were ad ho attacks.

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It was very difficult to attack the research.

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'cause it was, it was reasonable research,

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though I was a half wit, half educated professor,

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somebody who didn't know about this, you know,

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how can an academic understand what we do,

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and things like that.

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And if you looked at something like the Law Society Gazette

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online, there were at least four, five, maybe six pages

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of comments, all of which went on in that vein.

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They were all a, attacking me.

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Um, some people stood up in parliament,

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in both houses and, and objected to the research.

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Uh, I have to say, my, my co-researcher

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who is an economist,

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had never been in this kind of situation.

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And he, he got a little bit worried about this,

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rather anxious, and I said, look, don't, don't worry,

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Morton, you, you, you take a backseat.

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Let me deal with this. I'm, I'm quite happy

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to have this, you see.

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And so, I, I, I, I, I, they, they, they,

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they produced two reviews of the research.

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The research report was about 40 pages long.

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The first review was 30 pages long.

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Uh, and it didn't really say anything except,

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I didn't really understand the, the ethos of the bar.

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Of course, I understood the ethos of the bar.

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Um, the second one went through, which was,

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90 pages long, went through line by line trying

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to find every single mistake I I had made.

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I think they found one, possibly two small mistakes,

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which I admitted to.

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There's no point in doing that.

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Um, but never, none of them would ever get

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to the, point.

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So none of them talked about, the people on legal aid

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and criminal work and family law,

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that they were exempted.

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They just ignored that. Um, they said that people

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who inter I interviewed were lying,

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that they clearly know the truth.

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Uh, if they had done,

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they wouldn't have said what they said.

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Um, when I tried to find out how many people had been,

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punished for breaking the rule, they accused me

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of making up material about that as well, all of which was,

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you know, I was in the realm of hallucination,

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to be quite honest with you.

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Um, and so I, I produced a, a response to their reports,

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challenging them.

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And then I put it out there.

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I said, look, if you really want to, go

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to the line on this, I am willing to meet you anywhere,

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anytime, and we can debate this.

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Uh, and we do it out in the open, in the public,

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I see how it goes.

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At that point, pure silence. Nothing.

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They, they weren't, they weren't gonna do that.

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They weren't gonna do that.

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And so, I said, okay, I understand.

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I mean, in a sense, there must have been a,

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it must have been affirmation for you

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because you knew at that point you were right.

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But can I push you on what does

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that say about doing research on the legal profession?

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What's the broader, themes here?

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Ah, look, the legal profession has always been quite hard

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to do research on,

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because it is, you know, it, it,

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it bins itself up in things like lawyer client

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confidentiality and,

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and, you know, being an officer of the court

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and having a higher duty and so on.

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And, and it's a very old profession.

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It's been around for 800 years or so.

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So they, they, they built up a long, tradition,

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if you like, set of traditions, symbols, you know, the fact

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that they still wear wigs is, is a,

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you know, a strange thing.

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Uh, no one else does, but they do.

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Um, and so they don't make it easy.

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Now, I, I've had reasonable success

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because,

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usually I've always told people what I'm doing.

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I mean, yes, of course, you tell 'em what they're doing.

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Uh, and I've been quite straightforward

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and I said, I'm interested in various things, and,

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and I've talked to people about it.

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And when I've done interviews,

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they've always been, I think, successful.

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And, and my, my publications tend to show that.

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I've also done observation ethnographic work

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inside a large law firm, barristers chambers and so on.

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Uh, and, and people have accepted me for that

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as well, if you like.

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Um, but for a lot of people, it's,

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it's very difficult these days.

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If you want to do, observation in courts, you have

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to get permission from the Ministry of Justice.

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If you want to do interview people, you have

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to get all kinds of permissions and so on.

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And then of course, there are, university ethics,

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boards, which tend to make it a lot more difficult

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as well now in that way.

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But there are still people doing research, thank goodness.

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Uh, and there needs to be done

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because, you know, the right to access to justice,

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is a fundamental right in any society.

11:33.905 --> 11:37.885
Uh, we've got lots of unmet legal needs and so on.

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People need to be helped, and,

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and the law is one

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of the ways in which we're able to do that.

11:43.825 --> 11:46.605
So yes, it can be difficult,

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especially if you come up

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with results they're not terribly happy with.

11:51.145 --> 11:52.685
Um, but you know, that's the way of research.

11:53.025 --> 11:55.885
Uh, I've never, I've never changed the results.

11:56.005 --> 11:57.605
I let people see what I've, I've come up with,

11:58.035 --> 11:59.325
they say, well, I don't really like that.

11:59.505 --> 12:01.845
And I say, but is it wrong? No.

12:02.345 --> 12:04.885
Uh, okay, then it stays, that, that's it.

12:05.045 --> 12:07.885
I don't give anybody editorial control in that way.

12:08.345 --> 12:11.605
Um, but it's not, I, I'm not looking for bad things.

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I, I'm looking to sort of produce a, something that's real

12:15.945 --> 12:18.845
and solid and, and, and, and significant, if you like,

12:19.145 --> 12:19.965
and means something.

00:00 - Well, look, I've always been interested in, in the legal profession, and the law, both from a legal point of view and a sociological and anthropological point of view. And I think what happened here was that I became connected with a fairly new legal regulator at the time,

00:17 - called the Legal Services Board. And their job was to be an oversight regulator on, on the, the different aspects of the legal profession and the legal process. And they said, look, we need someone to do some research on the care plan form. I, I was a bit surprised because it, you know, it's one of those things which, yeah, everybody knows about it, but nobody really talks about it very much.

00:41 - But it, it seems that, the bystanders board, which is the regulator for the barristers, was thinking about making changes to it. And so they wanted to know more about it. And if what they did was they, they asked me and, and an economist, so it was kind of like a legal sociologist, and to look at the wall, do a kind of literature review, which we did in a day, because there was hardly any literature.

01:04 - So I went back and said, look, there's not much there, but if you like, I'd go out and do some interviews, and I can talk to the barristers Clarks, who, a lot of whom I know from my previous research on barristers Clarks, and we can get more fine grain detail about this. And, but, you know, the thing about the, the bar especially and the legal profession is it's very sensitive to research. and so the legal services regulator, in a way,

01:36 - the legal service board, the regulator, wanted to sort of put somebody in between them and the legal profession, that was me. I'm an academic, a professor, not that important really to, to anyone in a way. I don't really pose any threats or anything like that. So I was quite happy to do that because I've got nothing to lose, you know, and it's all research. And so, I went in and did my interviews and so on.

02:03 - Look, the Canberran rule is a rule that says every client should be able to get a lawyer, if you like, and, you know, whoever comes along first, like a taxi in a rank, that's the one you get. but it's one of these rules, which the way it's written in, in the, in the handbook, the bar handbook is it's, it's the rule. And then there's several pages of exceptions and exemptions to the rule. So it's actually very difficult for anyone,

02:31 - who's not a lawyer to interpret the rule, to understand how the rule goes. Look, the rule never got off to a very auspicious start. So when Charles, I was being tried before he was beheaded, the government asked a particular lawyer to, prosecute him, prosecute Charles, which he did to his fullest ability. And of course, we know the result Charles was, executed.

02:55 - And, and then we had Oliver Cromwell. And then when Charles II came back, Charles II was a bit miffed at his father, having been, dealt with this way. So he went after the, the lawyer John Cook, who is now a judge, and said, you know, you shouldn't have done this. He said, well, no, I was asked to, my client was the government. but the result for him was

03:16 - that he was hung, drawn and courted. so they didn't let that one go. but it's one of those rules that's rolled on and on and on, and essentially it allows the bar to say, we are above other professions. We are above others because we have this obligation, this great moral, move towards helping people. Whether we do or not, that's another thing.

03:41 - but it allows them to say, we should not be, dealt with in the same way as other professionals, whether that be doctors, solicitors, accountants, and so on. and my argument was, yeah, well, you know, you put forward the cab rank call, but you know, it's very difficult to see it in its operation. it's quite easy to get out of. It's quite easy to avoid, and, you know, it doesn't really fit with the modern,

04:12 - era. So originally it was meant to be a way of making sure that the horrible client would get representation. So if you go back to the 1970s, there was some IRA bombers being, prosecuted, and it was impossible to get representation for them. And the bar had to step in and say, make some barrs to do it. The way it's gone today is that the more horrible the client, the more desirable

04:38 - that client becomes in a way. So that, you know, it was said to me that, because of the publicity that results from that, and I'll give you an example. when Rachel Books was being, prosecuted with the news of the world scandal, she fired, her legal team hired a new one because she'd negotiated a lower price, because suddenly the publicity value of her case was that much higher.

05:01 - and so what they were going to get from that was worth more than money, if you like. a number of clerks I remember said to me that if Andes, Breck, the Norwegian Bomber who shot those poor children on the island had been in England, the lawyers would've queued up around the block to represent him, because the publicity would've just been enormous, you know, for that. So it's moved away from, you know, the type of client, if you like, any client can get representation now.

05:29 - It's now more to do with money. and, and, and it really affects people who are on legal aid the most. So if you are, have a family law problem, criminal law problem, something like that, the bar has now said that, you know, we are not bound by the cab rank rule for those particular kinds of cases because the fees aren't good enough. Now, these are the people who need it the most. You know, they're the ones who really should be bound in

06:01 - with the cab back wall, but they're the ones which are excluded, which is a, a great, great shame. So I, I, I find it's, you know, it's one of those things that Clark can say, the fees are way too high, and the, the client just moves away. but it also is to do with the fact that, clients can't shop for lawyers in a normal way. It's, law is a, what we call a credence good, you know, it, it, it's, it's, it's given to you. You get the results, but you have no idea of the quality

06:33 - of the work that's being done or the result or anything like that. you just have to believe it, if you like. And so the Cabra pool doesn't help in any of that situation whatsoever. They hosted it, they detested it, and, and they kicked up a hell of a fuss. So all the legal journals like the Law Society Gazette, council Magazine and what have you, were running articles. And essentially, most of the attacks were ad ho attacks.

07:05 - It was very difficult to attack the research. 'cause it was, it was reasonable research, though I was a half wit, half educated professor, somebody who didn't know about this, you know, how can an academic understand what we do, and things like that. And if you looked at something like the Law Society Gazette online, there were at least four, five, maybe six pages of comments, all of which went on in that vein. They were all a, attacking me.

07:32 - some people stood up in parliament, in both houses and, and objected to the research. I have to say, my, my co-researcher who is an economist, had never been in this kind of situation. And he, he got a little bit worried about this, rather anxious, and I said, look, don't, don't worry, Morton, you, you, you take a backseat. Let me deal with this. I'm, I'm quite happy to have this, you see.

07:54 - And so, I, I, I, I, I, they, they, they, they produced two reviews of the research. The research report was about 40 pages long. The first review was 30 pages long. and it didn't really say anything except, I didn't really understand the, the ethos of the bar. Of course, I understood the ethos of the bar. the second one went through, which was, 90 pages long, went through line by line trying to find every single mistake I I had made.

08:23 - I think they found one, possibly two small mistakes, which I admitted to. There's no point in doing that. but never, none of them would ever get to the, point. So none of them talked about, the people on legal aid and criminal work and family law, that they were exempted. They just ignored that. they said that people who inter I interviewed were lying,

08:46 - that they clearly know the truth. if they had done, they wouldn't have said what they said. when I tried to find out how many people had been, punished for breaking the rule, they accused me of making up material about that as well, all of which was, you know, I was in the realm of hallucination, to be quite honest with you. and so I, I produced a, a response to their reports, challenging them.

09:12 - And then I put it out there. I said, look, if you really want to, go to the line on this, I am willing to meet you anywhere, anytime, and we can debate this. and we do it out in the open, in the public, I see how it goes. At that point, pure silence. Nothing. They, they weren't, they weren't gonna do that. They weren't gonna do that. And so, I said, okay, I understand.

09:39 - I mean, in a sense, there must have been a, it must have been affirmation for you because you knew at that point you were right. But can I push you on what does that say about doing research on the legal profession? What's the broader, themes here? look, the legal profession has always been quite hard to do research on, because it is, you know, it, it, it bins itself up in things like lawyer client

10:00 - confidentiality and, and, you know, being an officer of the court and having a higher duty and so on. And, and it's a very old profession. It's been around for 800 years or so. So they, they, they built up a long, tradition, if you like, set of traditions, symbols, you know, the fact that they still wear wigs is, is a, you know, a strange thing. no one else does, but they do.

10:23 - and so they don't make it easy. Now, I, I've had reasonable success because, usually I've always told people what I'm doing. I mean, yes, of course, you tell 'em what they're doing. and I've been quite straightforward and I said, I'm interested in various things, and, and I've talked to people about it. And when I've done interviews, they've always been, I think, successful.

10:48 - And, and my, my publications tend to show that. I've also done observation ethnographic work inside a large law firm, barristers chambers and so on. and, and people have accepted me for that as well, if you like. but for a lot of people, it's, it's very difficult these days. If you want to do, observation in courts, you have to get permission from the Ministry of Justice. If you want to do interview people, you have

11:12 - to get all kinds of permissions and so on. And then of course, there are, university ethics, boards, which tend to make it a lot more difficult as well now in that way. But there are still people doing research, thank goodness. and there needs to be done because, you know, the right to access to justice, is a fundamental right in any society. we've got lots of unmet legal needs and so on. People need to be helped, and,

11:39 - and the law is one of the ways in which we're able to do that. So yes, it can be difficult, especially if you come up with results they're not terribly happy with. but you know, that's the way of research. I've never, I've never changed the results. I let people see what I've, I've come up with, they say, well, I don't really like that. And I say, but is it wrong? No.

12:02 - okay, then it stays, that, that's it. I don't give anybody editorial control in that way. but it's not, I, I'm not looking for bad things. I, I'm looking to sort of produce a, something that's real and solid and, and, and, and significant, if you like, and means something.

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