Just a few basic points on the role of the barrister.
The barrister is an officer of the court. He or she acts on behalf of a client but, unlike a solicitor, whose exclusive duty is towards the client and who can therefore be sued for negligence, the barrister’s primary duty is to the court and therefore to justice. A barrister’s role in the drama of the law is therefore to play a part in ensuring that justice is done by ensuring that his or her client is provided with the best representation, in the forum of the court before the judge, that he or she is capable of providing. Technically, a barrister, in return for his or her services, which provide advocacy for the client, but more importantly serve justice, is given an honorarium not a fee, and certainly not a salary. Traditionally, this honorarium was placed in a pocket of the folds of his or her gown, following the Roman model. In this way, the possibility of bribery was avoided – the barrister received the honorarium in secret, blind, as a mater of honour, and, in some circumstances, might get nothing at all! In practice solicitors provide this fee and are therefore the people who ‘brief’ the barrister. The barrister cannot be approached directly by the client and what is more the barrister cannot sue the client for the honorarium. The ‘classic’ statement about role of the barrister in the Common Law is set out in Denning MR’s judgment in Rondel v Worsley [1967] 1 Q.B. 443 atarting at p 493. In this case, the plaintiff, Norbert Fred Rondel, one of the Kray’s enforcers attempted to sue his barrister for negligence when he was sent down for GBH. This is how Denning MR described the facts:
During the night of Saturday to Sunday, April 5, 1959, there was a dance at a house, 13 St. Stephen's Gardens, W.2. In the early hours, at 2.30 in the morning, a man named Manning was at the door. He was the doorkeeper. Norbert Fred Rondel went to the house. He went, he says, on behalf of Peter Rachman, the landlord. He spoke to Manning. 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. 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. "It sounds difficult in cold blood," he said, "but I can demonstrate it." We did not accept the offer.
However, although Denning MR’s judgment in Rondel v Worsley is the ‘classical’ statement of the role of the barrister, a great deal has changed since 1965. In the first place, many barristers provide advice outside the courts and for this advice they can be sued. Secondly, many barristers are now employed, by the state and by businesses. Thirdly, since the Mackay reforms of the early 1990s, solicitors with advocacy qualifications can appear in court. Finally, the most recent reforms of the present Labour government will allow barristers to enter into partnerships with other professionals, both legal and lay. The consequence of all of these changes mean is that the role of the barrister, and the Bar, have been radically transformed in the last 20 years. In further episodes of The Barristers, the highly controversial impact of these changes will become very apparent. The ‘classical’ age, epitomised in Denning MR’s judgment in Rondel v Worsley is now at one with Nineveh and Babylon, to say nothing of Cicero’s Rome!
