By right, lawyers should not ‘cherry pick’ their clients but instead adhere to the ‘cab-rank rule’. It is a lawyer’s duty to the public to accept all work from all clients in courts.

IMAGINE waiting at the cabstand for hours on a rainy day hoping to catch a cab home. Your patience pays off, when a cab arrives.

Much to your dismay, the cab driver rejects you because you’re soaking wet and the distance is too near for the driver’s liking. Suddenly, a gorgeous, immaculately dressed lady comes out of nowhere, cuts queue and hops into the cab without any question asked. Now, can you blame the cab driver for choosing his customers?

In the legal fraternity, a similar situation may occur. For example, in some criminal matters, there have been allegations that some lawyers have refused to take up the case as the lawyer feels the potential client is guilty and should be severely punished. Is the lawyer incorrect in selecting their clients and not living up to the legal maxim of “everyone is innocent until proven guilty?”

By right, lawyers should not “cherry pick” their clients but instead adhere to the “cab-rank rule”.

What is the “Cab-Rank Rule”?

The rule has its origin in English law and has its name derived from the English tradition that the cab driver at the front line is supposed to take the first passenger requesting for a ride.

The rationale behind the rule is that everyone is entitled to be represented. This has since been adopted and incorporated into the Malaysian Legal Profession (Practice & Etiquette) Rules 1978.

Rule 2 of LPR 1978 states that “An advocate and solicitor (‘lawyer’) shall give advice on or accept any brief in the courts in which he professes to practise at the proper professional fee dependent on the length and difficulty of the case, but special circumstances may justify his refusal, at his discretion, to accept a particular brief”.

The exceptions to the rule:

There are exceptions to Rule 2 where a lawyer can refuse a particular brief under special circumstances. It is opined that special circumstances can be inferred from Rule 3 to Rule 6 of the LPR 1978.

A lawyer shall not accept a brief if by doing so, he will be “professionally embarrassed”. Such embarrassment arises where the advocate and solicitor finds he is in possession of confidential information as a result of having previously advised another person in regard to the same matter or where there is some personal relationship between him and a party or a witness in the proceedings.

Further, an advocate and solicitor should not accept a brief if he knows or has reason to believe that his own professional conduct is likely to be impugned.

The word “impugned” is however not defined in the Rules. But it would simply mean that an advocate and solicitor may refuse a brief if he is of the view that his professional conduct will be challenged or put into question.

Also, Rule 5 states that an advocate and solicitor should not accept a brief if it is difficult to maintain professional independence or is incompatible with the best interest of the administration of justice.

Lastly, an advocate and solicitor should not accept a brief if he is unable to appear and represent the client on the required day. This is to avoid the client being abandoned in the midst of proceedings.

These exceptions seem rather straight-forward but one issue which is pondered upon is, “can a lawyer act for someone whom that lawyer know or suspect to be guilty in criminal matters?”

The answer to this question is rather simple. Lawyers should not pre-judge their client even before the trial has started. English judge, Baron Bramwell once said “a man’s rights are to be determined by the court; not by his attorney or counsel”.

However, it is human nature to judge others.

In the movie Philadelphia, a man with AIDS (played by Tom Hanks) is fired by a conservative law firm because of his condition. He then hires a small time lawyer who was the only one willing to act for the AIDS-infected client.

The client, who is a lawyer himself, was rejected by nine lawyers, who refused to take up his matter. The injustice in Philadelphia is precisely what the cab-rank rule aims to eliminate.

Under the legal system, even the most heinous killer is entitled to be legally represented. If lawyers choose their clients, what will happen to such unpopular defendants who are often those most in need of competent legal representation? If access of justice is not available to the public, then public interest is at stake.

Furthermore, one of the main reasons lawyers choose their clients is because of the fee at stake. The cab-rank rule cannot be followed strictly due to concern on the size of the fee. Most of us are of course financially motivated and will be tempted by someone who offers more.

Keeping that in mind, the Malaysian Bar Council and the Government should be commended for helping to fill in the loopholes left by lawyers who are not following the cab-rank rule. With the formation of legal aid centres around Malaysia and the National Legal Aid Foundation in 2011, the public will have a better chance of getting legal representation.

The importance of cab-rank rule is understated and lawyers ought to appreciate the importance of this rule.

I believe the cab-rank rule needs to be revived and not to be taken too lightly by lawyers. Unless and until serious action is taken by the Bar Council Disciplinary Board against lawyers who pick and choose their clients, there is a real danger that some people will simply be unable to obtain appropriate legal representation.

It is a lawyer’s duty to the public to accept all work from all clients in courts in which he holds himself out as practising, however unattractive the case or the client.

The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit www.malaysianbar.org.my.

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