The ‘cab-rank’ rule

R v Ucay and another [2007] All ER (D) 296 (Oct)

Although this was an appeal in the Criminal Division, its interpretation of a solicitor’s duty to the court may have relevance to civil proceedings. At the end of the prosecution case, the defendant completely changed his instructions, presenting his counsel with an impossible situation. If he could properly do so, he had to continue to represent his client, but there are occasions, and this was one of them, where he could not do so. It was for counsel to decide whether consistent with its obligations to his client, and the court, and the rules of his profession, he was so profoundly embarrassed that he could not continue with the case. The judge refused to grant the defendant’s new counsel, the lengthy adjournment he sought. In these circumstances, the new counsel was required ‘to soldier on and do the best he could’. In circumstances where counsel was soldiering on, an order for wasted costs, or a successful action for professional negligence could not realistically be in contemplation in the absence of some remarkable subsequent developments. The Law Society submitted that soldiering on was inappropriate for and unavailable to a solicitor who would be at risk of contravening what were then the Law Society Rules. A solicitor without sufficient resources or lacking the necessary competence was required to cease to act and it was an elementary core duty of the profession that a good standard of service should be provided for the client. Breach of the rule could provide evidence of inadequate professional services and professional misconduct. The rules did not expressly identify an obligation on a solicitor to continue to instruct counsel who had decided, in accordance with his own professional duties, to soldier on.