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Flagging down a cab or booking a chauffeur-driven limousine? Are we lowering the Bar?

Friday 5 April, 2013
by Jonathan Liberman

At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified “friendly” scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege.

What a sad and disquieting chapter in the history of an honorable and often courageous profession

Judge Gladys Kessler in US v Philip Morris USA et al (17 August 2006)

Over 1 million Australians have died prematurely as a result of tobacco use since 1950. Globally, the World Health Organization (WHO) estimates that the annual death toll from tobacco is 6 million, and rising, increasingly concentrated in low- and middle-income countries. It estimates that a staggering 1 billion people could die as a result of tobacco use this century.

As Judge Kessler observed of US tobacco lawyers – observations that resonate globally – lawyers have not played just a bit part in this story. They have not simply provided their services to tobacco companies defending legal challenges relating to past conduct. Lawyers – both in-house and external – have played, and continue to play, a central role in the tobacco industry’s day-to-day production and marketing of its lethal and addictive products. And they have acted, and continue to act, for the tobacco industry in suing (in the tobacco industry’s inimitable litigation-as-warfare style) and threatening to sue governments over interventions that are designed to reduce the death, disease and social costs caused by the industry and its products. For these reasons, the McCabe Centre / Cancer Council Victoria choose not to engage with law firms that choose to act for the tobacco industry.

But the position appears somewhat more complicated with respect to barristers in Australia and other jurisdictions in which the so-called ‘cab rank' rule operates. Under the cab rank rule, a barrister should not refuse a brief on the basis of the objectionableness of a potential client’s behaviour or character.

The rule was the subject of a very interesting event we co-hosted last month, ‘Is it the end of the line for the cab rank rule?’, with Monash University’s Centre for Regulatory Studies on the occasion of the visit to Melbourne of UK Professor John Flood, who has recently published a paper, with Professor Morten Hviid, ‘The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market’.

The cab rank rule vexes many people. For a start, many of us know of barristers who find ways to avoid acting for corporate clients they find objectionable, and are therefore not quite sure what to make of the rule. What kind of rule is it? (Indeed, Professors Flood and Hviid suggest that it is more a principle than a rule.)
 
And when we look at the rule / principle, its most common justification appears to be that even people charged with the most heinous criminal offences are entitled to be defended by competent, qualified counsel as the resources of the state are marshalled and levelled against them. This seems to be unobjectionable (though it is curious that the rule / principle applies only to barristers, and not to solicitors).

But it can be difficult to explain how we get from here to the point where multinational corporations should be able to conscript the barristers of their choosing in their efforts to market products that are addictive and kill people and to fight against measures designed to restrict these efforts. Or looked at from the barrister’s side – that he / she should be unable to refuse a brief from such a corporation on the basis that he / she finds its business, its behaviour and its values fundamentally offensive.

It is important to underline that this is not about whether tobacco companies (or other corporations) should be able to assert, test and enforce their rights, or whether counsel should be able to act for them in doing so. Rather, it is about whether it should be seen to be a violation of a rule for a barrister to refuse to be a part of this; and if so, what the justifications for such a rule are.

And lest anyone fear that corporations that do great harm would be unable to find barristers to act for them in the absence of the cab rank rule, the tobacco industry’s experience with law firms – who are not bound by an equivalent rule – should provide relief. British American Tobacco, Imperial Tobacco, Japan Tobacco and Philip Morris all had large, handsomely remunerated law firms acting for them in their recent unsuccessful High Court challenge to Australia’s plain packaging legislation.
 
There are at least three important distinctions between the case that provides the rule’s classic rationale, and the tobacco industry as client: between real people and corporations; between the application of skills and expertise in respect of the legal consequences of conduct that has already taken place, and involvement in, or influence upon, ongoing and/or future conduct; and between criminal prosecutions and other kinds of legal disputes. For all the legal profession’s great aptitude for distinguishing and parsing, it is curious that, in the cab rank rule, it seems to elide distinctions of such moment.

Two of the event’s panellists, Peter Gordon and Professor Rob Moodie*, suggested that in its application to corporations that do harm, the rule does not, in fact, serve the community. Rather, it protects the commercial interests of barristers, relieving them from having to make decisions about the kinds of undertakings they do and don’t want to work for and from considering the real-world consequences of their work, and allows them to dress their pursuit of commercial interests up as an exercise of virtue.

In her  keynote address to last year’s World Conference on Tobacco or Health, WHO’s Director-General, Dr Margaret Chan, spoke about the changed face and tactics of the tobacco industry – ‘The wolf is no longer in sheep’s clothing, and its teeth are bared’ – including its ‘high-profile legal actions targeting Uruguay, Norway, Australia, and Turkey [which] are deliberately designed to instil fear in countries wishing to introduce similarly tough tobacco control measures’. She said that ‘Big Tobacco can afford to hire the best lawyers’.

We agree with Dr Chan’s account but would respectfully disagree with her use of the word ‘best’. We see the word ‘best’ as meaning ‘most good’. And we think the adjective ‘good’ has an important moral dimension.  The cab rank rule – in theory, at least, because in practice it appears to often be circumvented – seems to us to impose unjustifiably on good barristers.  We think its operation should be qualified so that it serves and protects good barristers and the community as a whole.

*Peter Gordon and Rob Moodie are respectively co-chair and a member of the McCabe Centre’s Advisory Committee

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