ISSUE 5 2008 - Sweet & Maxwell

406 Case & Comment [2008]
as those could not impinge on the obligation of confidentiality between lawyer and
client. Lawyers would do their best to comply with the requirement within the
limits of the rules governing legal professional privilege, with the result that the
court might be less well informed of the pressures on lawyers to withdraw from the
defence or explain the nature of the breakdown. The purpose of the regulations
was to ensure that the client did not manipulate the system. Claims of a breakdown
in the professional relationship between lawyer and client were frequently made
by defendants. If judges intended to reject an application for a change of legal
representative they might well explain to the defendant that the consequence might
be that the case would continue without him being represented at public expense.
If defendants terminated their lawyer’s retainer for improper motives, the court was
not bound to agree to an application for a change of representation. The ultimate
decision for the court was case and fact specific, and it did not follow from the
repeated indication of the mantra ‘‘loss of confidence’’ that an application would
be granted.
(3) Judges should seek to find a common-sense solution to the kind of problems
to which the withdrawal of counsel or a change of instructions could give rise,
clearing up possible misunderstandings and, as best they can, introducing the calm
and balance which sometimes can evaporate in the forensic process. However, it
would rarely be right for trial judges, midway through a trial, to be required to
engage in a personal discussion with defendants about their defence, and whether
it was changing, or the state of the professional relationship with their lawyers, and
certainly not if satisfied that a defendant was attempting to manipulate the process.
Where barristers or solicitors were invited to take on a defence case at a very late
stage or halfway through a long trial, the starting point was that trial judges had to
decide whether, and if so for how long, they were prepared to adjourn a trial to
accommodate new counsel. The responsibility was vested exclusively in the judge.
If the judge’s decision produced an injustice or deprived the defendant of the fair
trial to which he was entitled, the remedy was to be found in the Court of Appeal.
The rules of the legal professions had to defer to and be consistent with those
principles.
(4) The cab-rank rule, and the rationale which supported it, applied whenever,
and however late, the barrister was instructed. The absence of what the barrister
would regard as sufficient time for the purpose of preparation did not constitute an
exception. Paragraph 701(b)(ii) of the Code of Conduct 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. Paragraph 701(b)(ii) was concerned to prevent barristers from
accepting work over and above their existing commitments which they would
not be able adequately to prepare and deal with in a professionally competent
manner. The barrister faced with the problem which arose in the present trial
was professionally required to soldier on and do the best she could. The process
would normally encompass discussions with former counsel, taking stock generally,
analysis of the issues likely to arise thereafter, and sensible applications to the
trial judge for adjournment as and when the need arose. Rule 2.01 of the Law
Society Rules 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. Such difficulties arose because of the judge’s ruling, not the absence of
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