The issue was crystallised by events surrounding the recent trial and conviction at Southwark Crown Court of Richard Edmonds, the national activities organiser of the British National Party (BNP), and other members of the far-right group. Stephen Browne, a black man, was left scarred for life after an attack by Edmonds and others outside a pub in Bethnal Green last September.
The offenders were arrested, taken to Bow Road police station and charged with offences ranging from violent disorder to intent to cause grievous bodily harm. They requested the services of the duty solicitor. The first three solicitors contacted by the police refused to attend. Before a willing solicitor could be found, two of the BNP men were released under the requirements of the Police and Criminal Evidence Act (Pace).
The Thames area duty solicitor committee, alerted by police concerns, responded by instructing its members that they had an absolute duty to represent anyone, charged with any offence, who requested their services as duty solicitor. In a letter addressed to all lawyers on the rota the committee secretary, Andrew Palazzo, warned that anyone who felt unable to make this commitment should consider whether he or she should continue as a duty solicitor.
So far the edict has elicited little public dissent and no solicitors have withdrawn. But privately there is deep anxiety. The practice of law in the East End inevitably means facing race issues. Many firms have a partnership policy against taking on racist clients: some cite concern for existing clients, others point to their own sensitivities or those of their staff.
Michael Riley, the senior partner in the Bow firm Breeze Benton, explains: 'It's a policy that you are forced to consider if you practise in the East End. We've had the policy many years and we've had cause to exercise it.'
One occasion involved the former BNP councillor Derek Beackon. Shortly after his Isle of Dogs election victory Mr Beackon was asked to attend a police station for questioning and was told to bring a solicitor. He approached Breeze Benton, which declined to act on his behalf. The councillor eventually found a solicitor and no charges were brought.
Under the Law Society's rules of conduct solicitors are free to represent whom they like, save that they cannot discriminate on the grounds of colour, creed or sex. But according to Andrew Palazzo, the position of a duty solicitor is different. 'It's an emergency service,' he says. 'Like ambulancemen called to the scene of a crash we don't have the luxury of choice. It's our duty to act.'
Makbool Javaid, the chairman of the Society of Black Lawyers, says that this interpretation of the duty solicitor's obligations places solicitors, particularly black solici-
tors, in an invidious position. 'Their personal ethics tell them that they don't want to act but their professional ethics force them to either swallow their feelings or come up with well-worn excuses about how they can't attend,' he says. 'Black lawyers would much rather say plainly, 'we won't advise you because we find your views abhorrent'.'
But this view is not universally shared. Sunil Mehta, a partner in the East End firm Gary Jacobs and
Co, argues: 'It's my job to represent the guy. It's the same as acting for an alleged rapist, murderer or armed robber. The law gives them their rights - who am I to take them away?'
Andrew Palazzo, a committed anti-racist, points to legal argument to back up his case. If a duty solicitor leaves a suspect unrepresented in a police interview there are grounds for evidence obtained during that interview to be excluded under the provisions of Pace. 'What then if a racist walks free from assault charges because a solicitor has refused to advise him?' asks Mr Palazzo. 'How do we best serve justice?'
The duty solicitor debate is the sharp end of a thorny dilemma faced by solicitors. The BNP says its members are having increasing problems getting representation.
Most solicitors are free to reach their own decisions about which clients they represent. But the Law Society's new code on advocacy, introduced in response to the Courts and Legal Services Act, is likely to bring the dilemma into sharper relief. In effect it extends the barristers' cab-rank rule to all advocates. Solicitors acting as advocates can no longer decline to act because they object to their prospective clients' views. The consequences of defying the code are grave.
Barristers have long been spared the full effects of the cab-rank rule by the pressures of their diaries and the attentions of their clerks. Now solicitors whose consciences will not permit them to act for racist clients will have to find similar excuses.
Makbool Javaid says: 'Voltaire's line about disapproving of what you say but defending to the death your right to say it is all well and good, but Voltaire didn't have to practise crimninal law in the East End.'