This article is taken from the March 2025 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.
Is it legitimate to judge lawyers-turned-politicians by their legal work? This question has rarely seemed more important, as Lord Hermer, the attorney-general, has come under fire about his time at the English bar, especially when as a law officer he has had to advise on issues affecting his former clients such as Gerry Adams.
Almost by definition, every attorney-general will have had a variety of clients at the bar; but Lord Hermer is the first one to have specialised in suing the British government, thus making him far more vulnerable to political attacks.
His response has been to admit, under great political pressure, that he has recused himself from advising on certain subjects as attorney, whilst refusing to tell anyone which files he has recused himself from.
A fundamental part of the defence is that, as a barrister, Hermer was required to abide by the famous cab-rank rule, which broadly states that barristers have to accept any brief as long as it is within their competence and reasonably remunerated.
In the words of Horace Rumpole, this rule bound him to “accept anyone, however repulsive, who waves me down and asks for a lift”. That Hermer happened to have been hailed by Adams, in this argument, can have no bearing on his being able to advise on whether compensation ought to be paid to him later on as attorney-general.
Many barristers tend to specialise, not only in one area of the law, but on one side of the field
But as a 2013 report for the Legal Services Board admits, the cab-rank rule has been limited by the fact that many barristers tend to specialise, not only in one area of the law, but on one side of the field.
In crime, the Crown Prosecution Service is much less likely to brief someone from a “defence set”, whilst in family law there are barristers who specialise in work for local authorities and others for parents or for children. As a Twitter wag put it, barristers, just like cabbies, can choose which rank to sit in and when.
Indeed, before the alumni of Matrix and Doughty Street, two self-described “radical” sets, occupied the British government (Starmer was at Doughty Street; Hermer was at both), progressive barristers tended to be the cab-rank rule’s sternest critics, viewing it as a restraint on their ability to specialise in progressive causes.
In the 1970s, the red aristocrat Lord Gifford KC established a set of radical chambers which refused to act for landlords or the police. The Bar Council made noises, but was assuaged by the ludicrous assurance that his lordship was merely expressing a preference, not establishing a prohibition against such work.
As recently as 2023, a group of left-wing barristers, including Michael Mansfield KC (who called the cab-rank rule “obsolete”) as well as fox-basher Jolyon Maugham KC, signed a letter pledging to not prosecute climate protesters. Wisely in view of his previous legal work, Sir Keir let it be known that he supported the cab-rank rule, to the dismay of the letter’s signatories.
Before parachuting into politics, Hermer kept a low public profile; but for those who used their legal careers to further their political ones, the rule against judging politicians by their clients is even harder to maintain. Many commentators were horrified when the Sun wrote about the murderers and rapists Starmer got off death row in his crusade against capital punishment (not, incidentally, covered by the cab-rank rule as much of this took place abroad, often in places where Starmer had no right of audience).
But Starmer often touted his anti-death penalty work as his political fortunes were on the rise, just as he touted his record as Director of Public Prosecutions when trying to bolster his anti-crime credentials.
Many will indeed think better of him for having got murderers off death row in Malawi; but are those who support hanging (which polls well with the public) not entitled to view the Prime Minister in a negative light for the same work?
Starmer’s eagerness to tout his death penalty work speaks to a broader problem with the maintenance of the cab-rank rule, which is that barristers increasingly identify themselves publicly with their clients.
A chambers press release bragging about a tenant’s victory is one thing, but when barristers speak at their clients’ press conferences (as Starmer did) or write books supporting their clients’ case (as Starmer’s friend, the Mauritian barrister Philippe Sands KC, did) or write books with titles such as “Memoirs of a Radical Lawyer” (as Michael Mansfield KC did), the credibility of the separation between client and lawyer suffers in the eyes of a public that is not nearly as stupid as some legal commentators seem to believe.
This is a shame, as the idea that everyone deserves legal representation is a noble one. The great French lawyer Malesherbes incurred royal displeasure for challenging the conservative policies of the Bourbons; yet when Louis XVI was put on trial he volunteered as his lawyer, though he knew the chances of success were nil and his life would be endangered — and he and almost all his relatives were executed afterwards. Here was a lawyer-politician who could not be accused of partiality.
