R v Ulcay and another [2007] EWCA Crim 2379, [2007] All ER (D) 296 (Oct)
Court of Appeal, Criminal Division
Sir Igor Judge P, Pitchers and Openshaw JJ
19 October 2007
Rule 2.01 of the Law Society Rules does not prevent a solicitor from continuing to act where an order of the court creates difficulties for him to discharge his professional obligations to his client. If the “cab-rank” rule of barristers requires a barrister to continue with a case, the solicitor in those circumstances must continue to give him instructions.
Benjamin Aina (assigned by the Registrar of Criminal Appeals) for the defendant.
Charles Garside QC and Roger Smart (instructed by the Crown Prosecution Service) for the Crown.
Timothy Cray (instructed by the Bar Council) for the General Council of the Bar.
Bruce Holder QC (instructed by the Law Society) for the Law Society.
The defendant and others were charged with being part of a large commercial enterprise engaged in illegal immigration. Immediately before the defendant’s case was due to be presented to the jury, both counsel and solicitors applied to withdraw from the case on the ground of “professional embarrassment”, as the defendant wished to withdraw certain admissions and begin a fresh trial with new representatives. New counsel subsequently appeared on behalf of the defendant. They applied for an adjournment, and obtained one albeit for a shorter time than they had applied. Subsequently they also withdrew from the case, citing insufficient time to prepare. The trial eventually proceeded with the defendant unrepresented. He was convicted, and appealed. Issues arose as to the appropriateness of counsel and solicitors withdrawing from the case.
SIR IGOR JUDGE (GIVING THE JUDGMENT OF THE COURT):
At the end of the prosecution case when the defendant completely changed his instructions, counsel had been presented with an impossible situation. If he could properly do so, of course he had to continue to represent his client, but there were occasions, and this was one of them, when he could not do so. It was for counsel to decide whether, consistent with his obligations to his client, and the court, and the rules of his profession, he was so professionally embarrassed that he could not continue with the case.
It would rarely be right for the trial judge, midway through a trial, to be required to engage in a personal discussion with a defendant about his defence. In this case the judge had been entitled to exercise his discretion to refuse the lengthy adjournment sought by counsel.
Professional conduct
His lordship turned to the decisions made by the two sets of new lawyers to withdraw.
The trial judge had to decide whether or not, and if so for how long he was prepared to adjourn a trial to accommodate new counsel. The responsibility was vested exclusively in him. Any challenge had to be by appeal.
The cab-rank rule was clearly laid down in the Code of Conduct, para 602. Specific exceptions were provided. One was professional embarrassment, if the barrister would be unable adequately to prepare the case. The existing exceptions were not immutable, and might be extended from time to time.
The cab-rank rule was essential to the proper administration of justice. It applied whenever, and however late, the barrister was instructed. The absence of what he would regard as sufficient time for the purpose of preparation did not constitute an exception.
Paragraph 701(b)(ii) of the rules directed that a barrister should not undertake any task for which “he does not have adequate time and opportunity to prepare for and perform”. It did not constitute an exception to the cab-rank rule. Those exceptions were expressly identified in para 602 where the rule was promulgated. Paragraph 701(b)(ii) was concerned to prevent a barrister from accepting work over and above his existing commitments which he would not be able adequately to prepare and deal with in a professionally competent manner. The barrister faced with the same problem as new counsel in the present trial was professionally required, in the words of Antonelli v Wade Geary Farr (A Firm) [1994] Ch 205, [1994] 3 WLR 462 “to soldier on and do the best she 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 Law Society Rules (the rules).
Counsel drew attention to r 2.01(b) which required the solicitor without sufficient resources or lacking the necessary competence to cease to act, and he pointed out that it was an elementary core duty of the profession that a good standard of service should be provided for the client. Breach of rule 2 in particular could provide evidence of inadequate professional services, and professional misconduct. The rules did not expressly identify an obligation on the solicitor to continue to instruct counsel who had decided, in accordance with his own professional duties, to soldier on.
Duty of the profession
The answer was that r 2.01 was not directed to and the solicitor was not prevented from acting nor required to cease to act where an order of the court created difficulties and made it that much harder for him to discharge his professional obligations to his client. Those difficulties arose because of the judge’s ruling, not the absence of appropriate resources or necessary competence. The ruling, however, was binding on him, as it was on the barrister, and everyone else involved in the conduct of the case.
There was no reason why the professional position of the barrister and solicitor could or should be distinguished. Both owed a duty to the court. Both had to comply with it. Both had to soldier on. Neither was in breach of the rules of his profession, nor acting improperly or negligently, if the worse that could be said of him was that he was doing his best to comply with orders of the court which made it impossible or difficult for him to look after the client’s interests, to the standard which, without those difficulties, he would normally be expected to achieve.
Accordingly, if it was thought that r 2.01(b) required the solicitor to refuse or cease to act in circumstances like this case, that perception was wrong. It was not a good reason for ceasing to act for a client that a solicitor disagreed with the decision of the court, even if he believed that the order had caused insuperable difficulties for him, or his client, in the preparation and conduct of the defence. The decisions of the new teams of barristers and solicitors were wrong. To the extent that they were acting on the advice of their professional bodies, the advice they received had been wrong.
His lordship turned to the facts of the case and dismissed the appeal.
