Client selection is one of the most important issues for lawyers. Once the lawyer is decided to take on the case of a particular client, he or she cannot simply abandon them because of the special relationship that is made between the defendant and their representative (lawyer). There are two very important issues related to the ethical problem in the question. First of them is a hesitation if an obligation to take unpopular cases exists and the second is whether it is professionally responsible to refuse certain cases. 1 Theoretically the duty to take unpopular cases is imposed on all barristers in general.
This is because of the so-called 'cab-rank rule'. The cab-rank rule is the obligation to a barrister to accept any type of work that comes along in a field in which he is recognised competent to practice. 2 The rule can be found under paragraph 602 of the Code of Conduct of the English Bar. The Bar supposes that all advocates that profess themselves competent to practice in any of the legal fields should be under the obligation to take on the cases they are authorised to take and by any means must not select cases to shun unpopular clients.
Moreover, according to the Bar, no practicing barrister should have a right to refuse along-coming work on the ground that the client is already legally served. 3 As already mentioned, barristers cannot refuse providing their services neither on the ground that the case is 'objectionable' to them, nor bearing in mind that the client's beliefs or their financial source to cover the legal costs are unacceptable to the barrister. Nevertheless, there are some exceptions to the rule.
In practice, a barrister can turn down a brief when they lack experience of competence in case, when they do not have sufficient time to prepare the case properly, when the fee is not adequate to the case, when they already have a full schedule etc. 4 It is obvious that a barrister who is not willing to undertake the case would get around easily and finally avoid undertaking it using one of the grounds for refusal given above. At this stage, the question arises: "Does our legal system actually need the cab-rank rule?
" Bearing in mind that the rule could be not obeyed when wanted one could say that the principle of the rule is nothing but useless. On the other hand, it could be said that thank to this rule unpopular clients have a possibility to receive proper legal representation. Nonetheless, we encounter other problem on the way to answer this question. Namely, the distinction between barristers and solicitors does allow the least to decide freely whether to accept instructions from any client in particular.
However, solicitors are not advised to accept clients who are acting aggravated by malice. Why, thus, is the cab-rank rule merely used in terms of barrister services? Is it so because barristers are mostly to represent any defendant in higher courts? Or is it so because it is much more tough to obtain higher advocate services? In general, there are no suggestions that solicitors should be subject to the rule. There are various reasons why a firm of solicitors might not be willing to act for any client or class of clients in particular.
Nonetheless, various consequences to be faced would come along if solicitors were made subject to the "cab-rank" rule. One of them, for instance, would be a great confusion in regard to distinction of the cases that go to higher courts any these that do not. 5Anyhow, bearing in mind the distinction between the professions, we also have to come upon the link that connects these two. Apparently, a client could only get a barrister representation if he (the client) has first coped to find a solicitor to act for him.
Thus, albeit that solicitors have no "cab-rank "rule, their work in higher courts is combined with the one of barristers. However, if the two professions are to be competitive between each other, they should operate as they normally do – the barrister taking instructions from solicitors and solicitors taking their instruction from clients. 6 As far as we could have realised, the problem of the 'cab-rank' rule and representing unpopular defendants is an ethical one. It should be than considered which, ethical or legal issue is the one of greater importance?
The right to not to undertake cases as they come along by solicitors does not extent only to refusing to represent some people or class of people which solicitors do not wish to represent because of their (client's) immoral activities or intentions. Generally, lawyers should be under extensive responsibility for their clients and the causes they fight over in the court. It is ethically and morally erroneous to argue a case whose positive result is thought to bring more harm than good.
Moreover, if a solicitor does not agree with the cause, he or she might want to lose the case, which is neither legally nor ethically correct. It is a matter of personal conclusion in a professional context. Even though there is no justification that if a solicitor does not undertake a case, another one would do it, it would be morally incorrect to act on behalf of someone who enforces their legal right in a depraved cause or uses technical defences to avoid warranted liability. 7 Nonetheless, it does not mean that a lawyer should merely represent the client whose activities or intentions he approves.
What it is trying to explain is that lawyers should represent clients whom they are properly prepared to defend regarding the later benefit to society. For instance, it could be more understandable if a lawyer refuses to represent a particular side in the euthanasia or abortion case because of his personal views and values, than if he refuses to act for a party in an unrelated property transaction case. Thus, the ethical values of lawyers should be also considered on refusing the cases. It will be for each lawyer separately to decide whether to take the responsibility or not.
All of them must develop a rationalisation for their action and be prepared to defend it. Considering unpopular defendants in particular, there is also another right which prevents, or tries to prevent any problems being caused by non-obeying of the 'cab-rank' rule. It is called the 'right to fair trial'. In general it means that every defendant is entitled to be properly represented by a legal professional. The right to a fair trial is the essential right in all countries respecting the rule of law.
If a trial is considered to be unfair, it would be normally restarted or its verdict quashed. This right could be found under article 10 of the Universal Declaration of Human Rights and article 6 of the European Convention in Human Rights. 8 It is crucial for the administration of justice that every client and every cause, however unpopular, should have adequate representation in the higher courts. In other words, every defendant – however scandalous the crimes he's charged with – is entitled to a competent and fearless lawyer.
9 Even the most abhorrent defendants must obtain legal representation because criminal defence is more about defending liberty, rule of law and fairness, and less about defending actions of individual defendants. According to some commentators, lawyers not only can, but should accept all demands for legal assistance, without any matters how unjust or unpopular they might be. Otherwise, people would be deprived of their rights. Even though it is true that everyone has the right to fair and right legal representation, this should not be a case as to why a particular lawyer should have an obligation to be everyone's and anyone's lawyer.