We shouldn't take the cab rank rule for granted in Ireland's justice system

In a democracy everyone has the right to legal representation — even murderers, and, yes, banks

Tue, 21 Oct, 2025 - 20:02

James McDermott

The greatest perk of being elected president of Ireland is getting to spend seven years living rent free in the 95-room Áras an Uachtaráin.

It is, therefore, appropriate that two key moments of the presidential campaign have involved residential property, most notably Fianna Fáil candidate Jim Gavin ending his campaign over a failure to return for 16 years an accidental rent overpayment of €3,300 by a former tenant.

However, when the presidential election began, even the most omniscient of commentators would not have predicted that the barristers cab rank rule would become one of the campaign’s hot button issues following criticism of Catherine Connolly for representing banks as a barrister before entering national politics.

There are understandable political reasons for highlighting the issue to those Connolly supporters who are struggling financially and have little prospect of owning their own home any time soon.

Such voters are unlikely to be impressed by allegations that Connolly represented banks in home repossession cases.

Whilst such disaffected voters might be unlikely to suddenly switch their first preference to Heather Humphreys, they might decide not to vote at all. This could create a potentially significant late swing in what is now effectively a two-horse race.

Area of practice

However, finding a legal justification for criticising a barrister because of the clients they represent is much more problematic.

In a democracy, everybody has the right to be represented in court. This explains why the cab rank rule obliges barristers to accept instructions in any case they are offered within their area of practice.

The cab rank rule has exceptions, so a barrister is not obliged to act for a client who does not pay a proper professional fee.

Any barrister fortunate enough to already have a full work diary is not required to accept further cases which they simply do not have the time to do.

As the law gets ever more complicated, many barristers choose to specialise in a particular area of work. This means an expert in conducting criminal trials will not be required to accept instructions in a land dispute.

Another important exception arises where the barrister has a conflict of interest, which could arise where they are asked to act against a former client about whom they hold confidential information.

However, a barrister should not be associated with their clients’ opinions or behaviour simply because they represent them

As the Bar Council of Ireland recently observed: “… barristers should not be identified with their clients, or their clients’ causes, or suffer adverse consequences as a result of being so identified.”

A barrister specialising in criminal defence work might find themselves regularly representing clients facing charges of theft, but it would be ludicrous to interpret their provision of legal services as somehow constituting an endorsement of the behaviour of their light-fingered clientele.

Most sensible people accept that people charged with even the most heinous of crimes are entitled to be represented in court and, if they cannot afford to pay for a legal team, then one should be funded by the State.

Why should a barrister be criticised for representing a bank in a repossession case? Some have suggested that the real problem is Connolly failing to disclose who her previous clients were before contributing to debates on the financial crisis in her capacity as a councillor and subsequently as a TD.

This ignores the fact that barristers owe an ongoing duty of confidentiality to clients, which means they do not talk publicly about cases they have acted in.

Personalised attacks

In Ireland, we should not take the cab rank rule for granted.

In 2023, over 100 lawyers in Britain released a declaration indicating that they would refuse to prosecute peaceful climate change protesters or act for companies supporting fossil fuel projects.

A more concerning emerging trend across the water is for very personalised attacks on legal professionals for simply doing their job.

In 2016, a High Court judgment on Brexit led the Daily Mail to publish on their front-page large colour pictures of the three judges under the headline: “Enemies Of The People.”

It is important that this example is not followed here but, as minister for justice Jim O’Callaghan correctly observed this week, “I’ve noticed in recent years, from all sides of the political spectrum, criticism being directed at lawyers because of the clients who they represent”.

Mind you, there are some lawyers who appear entirely unconcerned by such criticism.

American lawyer F Lee Bailey was one of the most celebrated advocates of his generation but, like all criminal defence lawyers, he was plagued by people asking him about how he felt in the aftermath of successfully securing an acquittal for a client he believed to be guilty.

Bailey’s response was to simply observe: “I have knowingly defended a number of guilty men, but the guilty never escape unscathed. My fees are sufficient punishment for anyone.”