Caroline Hayward and Sharon Ng consider the implications of giving solicitors’ undertakings and offer tips on minimising those risks.
Solicitors’ undertakings are often underestimated. Some people see them as harmless assurances, failing to recognise that they are binding commitments that solicitors must honour under professional conduct rules. Solicitors that casually give undertakings without fully understanding the true nature of them could end up in hot water if they don’t follow through.
In this article, we’ll explore why solicitors’ undertakings deserve more attention and careful consideration, and some questions to ask yourself if you are ever requested to give one.
What is a solicitor’s undertaking?
A solicitor’s undertaking is a formal promise by a solicitor to do something (or not do something) given in the course of legal practice. This promise can be express or implied, and may be given verbally or in writing. For the purpose of this article, we’ll focus on express written undertakings.
Solicitors have a professional duty under Rule 6.1 of the Australian Solicitor Conduct Rules to honour any undertaking that they give. They can only be released from it by the recipient of the undertaking or the court. Once an undertaking is given, the solicitor is personally bound by it and the obligations must be performed in a timely and effective manner.
Where would it come up?
You could be asked to provide a solicitor’s undertaking in a wide range of situations, whether you are working on a commercial transaction, litigation matter or dealing with a regulator. For example, you could be asked to undertake to deliver files, keep information confidential, destroy documents or pay money to a party.
An undertaking does not need to be in a specific form. The use of the words ‘undertaking’ or ‘undertake’ makes it obvious, but a promise by a solicitor made without using those words could sometimes still be construed as a solicitor’s undertaking, depending on the context. Chances are, if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck!
What happens if you fail to comply?
Strict compliance with a solicitor’s undertaking is an absolute must. Failure to comply is a serious matter which could result in severe consequences, including contempt of court, civil liability or disciplinary action.
If you breach an undertaking, the affected party could lodge a complaint for unsatisfactory professional conduct or professional misconduct with the relevant regulatory body. They could also take action against you in contract, tort or for misleading or deceptive conduct under statute.
Think you can get away with not complying if you have a good reason? Think again! Courts are generally unforgiving when it comes to excuses as to why a solicitor wasn’t able to comply with an undertaking. It doesn’t matter if the undertaking was dependent on a third party’s actions, if it was given in error or oversight, if circumstances have changed and made it impossible to comply with, or that it was inconvenient for the solicitor to fulfil the promise. You will likely be held accountable regardless.
For example, in Council of the Law Society of New South Wales v Fisher [2021] NSWCATOD 73, a solicitor was found guilty of professional misconduct after failing to comply with an undertaking she provided to the Law Society regarding the completion of a practice management course, which was a condition of her practising certificate. Even though she argued that she was unable to comply because she couldn’t secure a spot for the course and had some medical and financial issues, the Tribunal still held her accountable for not following through on her commitment.
Considerations before giving a solicitor’s undertaking
Before you rush into giving a solicitor’s undertaking, here are a few things to consider:
By taking a moment to think through a solicitor’s undertaking, you will save yourself a lot of stress down the track!
Further information
If you need further guidance on solicitors’ undertakings, please reach out to your KWM contact or Peter Yeldham.
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