Ontario Superior Court of Justice Trials

Norbert Fred Rondel and Honour

There was an outburst of violence. Manning was severely injured. His hand was so damaged that it had to have nine stitches. And he lost the lobe of his right ear. The plaintiff [Rondel] admits that he did it, but he says that he was attacked by Manning. He was looking for prostitution and acted in self defence. When it was suggested that he used a knife, he hotly denied it. He claims to be an expert in judo and karate. It would be degrading, he says, for him to use a knife. He told the judge in chambers: “I tore his hand in half and bit part of his ear off.” Even before this court he exulted in his achievement. He said: “It sounds difficult in cold blood, but I can demonstrate it.” We did not accept the offer.

Lord Denning in the 1966 English case of Rondel v. Worsley

To Norbert Rondel, it would be “degrading” to cut someone’s hand or ear with a knife. His sense of honour required using his bare hands and teeth.

The English legal system consists of solicitors and barristers, a lawyer is one or other, not both. In most other countries, Canada and the U.S. included, a lawyer or attorney is both a barrister and solicitor. It was the case in England that a barrister could not decide who their clients would be (they must accept every case or “brief”) and could not enter into a contract of fees for services with a client, nor sue to collect a fee. Conversely, a barrister could not be sued.

Barrister Worsley was retained mid-trial on a “dock brief” (Rondel retaining him from the prisoner’s dock) for 2 pounds, 4 shillings and 6 pence, supplied from the gallery.

Historically, payment of barristers was based on an honour system and the payment amounted to an honorarium:

The obligation to pay him was an obligation which was binding in honour, not in law. Such was the position of the advocate in the Roman law. Such was the position of the barrister in our English law. It was the tradition of centuries that what he received from the client was a gift or honorarium, and not a stipulated wage.

Lord Denning in the 1966 English case of Rondel v. Worsley

The Court in Rondel v. Worsley ultimately held that a barrister is immune to a lawsuit by their client. This was grounded in public policy that a barrister must do their “duty fearlessly and independently” for an advocate is a “minister of justice equally with the judge” and has a “monopoly of audience in the higher courts.”

Lord Salmon compared a barrister’s immunity to that of a Judge, witness and Jury, none of whom can be sued as they enjoy absolute immunity on public policy grounds. In the absence of such a public policy, lawsuits would flow from every trial. According to Lord Salmon:

The law recognises that, on balance of convenience, public policy requires that they shall each have such an immunity. It is of great public importance that they should all perform their respective duties free from the fear that any disgruntled and possibly impecunious litigant or other person may subsequently involve them in costly litigation.

… The duties of a barrister have never been better expressed than they were by Crampton J in R. v O’Connell (1844):

“This court in which we sit is a temple of justice; and the advocates at the Bar as well as the judge upon the Bench are equally ministers in that temple. The object of all equally should be the attainment of justice; now justice is only to be reached through the ascertainment of the truth… but we are all together concerned in this search for the truth. (The advocate) gives to his client the benefit of his learning, his talents and his judgment; but he never forgets what he owes to himself and to others. He will not knowingly misstate the law. He will not wilfully misstate the facts, though it be to gain the cause for his client. He will ever bear in mind that if he be retained and remunerated for his services, yet he has a prior and perpetual retainer on behalf of truth and justice.”

… One of the bastions on which our system is built is the privilege of judges, juries, counsel and witnesses to do their duty fearlessly, free from the risk of being harassed by litigation.

Lord Salmon in the 1966 English case of Rondel v. Worsley

Lord Denning noted the duty to the client and the paramount duty to the Court:

He must accept the brief and do all he honourably can on behalf of his client. I say “all he honourably can”, because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline; but he cannot be sued in a court of law.

Lord Denning in the 1966 English case of Rondel v. Worsley

The reader may wish to contemplate how concepts of honour may apply to bar fights, money, truth and justice.

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