Image from Lawyer Monthly
“You’re a slave, and yet don’t know it”[1] an old man who has set up a court of law at home is told by his son in The Wasps of Aristophanes. The charge here is that those who serve in the law courts are not the lords of justice they think they are. Rather, the son says that lawyers are mere tools used to grow the wealth of those who rule in Athens.
Could the same be said of barristers today? In Australia, they are bound by the cab-rank rule. This means that they must act on a first-come, first-serve basis. In other words, a barrister must accept any brief that comes his or her way, so long as it relates to their field of practice and they have time to do the work. Moral misgivings about a client do not allow barristers to deny their services to a client.
Or do they?
This week in the UK, more than 120 lawyers who make up a group called ‘Lawyers Are Responsible’ published a Declaration of Conscience. In the statement, they say that they will not act for new fossil fuel projects, nor will they help to prosecute climate activists who engage in peaceful protest.[2] The signatories include Sir Geoffrey Bindman KC, chair of the British Institute of Human Rights, as well as Professor Leslie Thomas KC and Imran Khan KC.
A junior lawyer in the group explained the predicament his peers find themselves in: “young lawyers are being placed in an impossible position. We’re being told by our firms and regulators it’s a professional obligation to act for fossil fuel projects, knowing that doing so will poison our own future and all of life on earth.”[3]
Somewhere out there, the legal ethics professor David Luban must be smiling. In 1986, he published a paper in the American Bar Foundation Research Journal urging lawyers not to act for clients who would use the law for nefarious ends; “ some things legally right are not morally right”,[4] he quotes Abraham Lincoln as having once told a client he refused to act for.
Of course, the counter-argument is that since access to the law is often only available through a lawyer, it is not the role of the lawyer to function as a moral screen and filter for a person’s use of the law – even if they disapprove of their motives. Lord Pearce once made the point that unpopular people being denied legal representation would “be the inevitable result of allowing barristers to pick and choose their clients.”[5]
But how likely is that really?
As they have made clear, the barristers who are part of the group Lawyers are Responsible are quite concerned about the climate emergency. They will not act for fossil fuel companies such as ExxonMobil, Royal Dutch Shell, or BP. But does it then follow that every other barrister in the UK will stand in solidarity with their civil disobedience?
It is possible, but not probable. We tend to differ in the moral beliefs we bring to our assessment of conduct. Not all barristers feel so strongly about the climate emergency. And if they did, these companies have very deep pockets. Is it too cynical to suggest that the moral views of some barristers might be submerged in a sea of greed?
The analogy reveals a rhetorical sleight of hand used to defend the cab-rank rule. People do have a right to access the law, which means they must also have a right to legal representation. But there is nothing about a person’s access to the law that requires they have a right to the legal representation of their choice – which is precisely what the rule seems to protect.
[1] Aristophanes, The Wasps, Act I, 40
[2] Lawyers Are Responsible, ‘Declaration’ accessed at <https://planb.earth/wp-content/uploads/2023/01/DECLARATION-FINAL-LAR.pdf>.
[3] Neil Rose, ‘Lawyers’ Eco-Declaration Sparks Cab-Rank Rule Row’ Legal Futures, 24 March 2023, accessed at <https://www.legalfutures.co.uk/latest-news/lawyers-eco-declaration-sparks-cab-rank-rule-row>.
[4] David Luban, ‘The Lysistratian Prerogative: A Response to Stephen Pepper’ (1986) 11(4) American Bar Foundation Research Journal, 638.
[5] Rondel v Worsley [1969] 1 AC 191 (Lord Pearce), 30.
Purely Dicta 