It might be predictable, but the bar is quite right to defend one of its fundamental principles of practice – the cab-rank rule. The trouble is that the real issue at the heart of the dispute between Fleet Street’s finest and the libel bar is conflicts.
In many other areas of practice – although this was not endorsed by a typically intransigent Bar Council – acting against former clients is rapidly going out of fashion. One member of a leading commercial set, which has a rigorous conflict checking procedure to endorse its position, said bluntly but typically: “If I behaved like that I’d go out of business.”
Of course, the libel bar is unique because the expertise is concentrated among a very small number of individuals in an even smaller number of sets. As a result, there is – as messrs Browne, Page and Rampton rightly point out on our front page – a very real danger that in practice, the newspaper lawyers’ proposals could greatly limit the choice of counsel for solicitors on both sides of the defamation field, in particular, of course, for claimants.
But it is surely the right of any in-house counsel to control and restrict, at their discretion, the leakage of potentially confidential information. In the case of the newspaper industry, its lawyers are merely voicing a theory that is already applied across numerous other industry sectors in their relationships with the bar.
A practical solution would simply be for Fleet Street’s lawyers not to instruct those barristers that continue to act against them, even if they are not permitted to offer retainers, which were outlawed by the Bar Council some 20 years ago.
The cab rank principle is definitely worth fighting for and the libel bar is clearly quite prepared to upset its paymasters to do so. However, in its current form it doesn’t sit altogether comfortably with the rules – and sentiment – on conflicts and client confidentiality.
Many barristers concede, in private at least, that strict conformity is no longer always possible, particularly with the growth of panels for both chambers and barristers.
Given that the cab rank rule was revised just two years ago when family law work was ‘undeemed’ (removing the compulsion on barristers to accept publicly-funded family work), and on 15 November the Bar Council will discuss a similar proposal for the criminal bar, perhaps it should be looked at again. Or, as both sides contend that the Office of Fair Trading would take their side, why don’t we just ask them?