The following article contains a case-study discussion of what constitutes an undertaking.
Which of the following, coming from a lawyer, is not an undertaking?
A: (in a meeting) My client will pay your costs relating to this application on the applicable court scale, to be taxed in default of payment.
B: (in an email) I undertake to provide the notice of acquisition of an interest in land within three days following settlement.
C: (in a telephone conversation) My assistant will get those documents to you by the end of the day.
In Solicitors’ Undertakings – Dangers & Safeguards, the Office of the Legal Services Commissioner described an undertaking as:
a promise made by a solicitor upon which the recipient is entitled to rely and depending on the circumstances, which binds the solicitor or solicitor’s client or both. Undertakings are obligations that lawyers pledge themselves or their clients to honor.
The Council of the Law Institute of Victoria’s recently adopted an Ethics Guideline on undertakings distinguishes between personal and client undertakings. It refers to the Professional Conduct and Practice Rules 2005 and reminds practitioners they should not give an undertaking relating to matters outside their control, particularly where a third party’s co-operation is required.
Practitioners should also avoid giving an undertaking that a client will or will not do something as clients sometimes change their minds.
Practitioners need to be careful when asking for undertakings from another practitioner. Rule 22.3 prohibits practitioners from seeking undertakings where the other practitioner requires a third party’s cooperation, which is not guaranteed.
To be an undertaking, a pledge or promise does not have to be in writing and the word ‘undertaking’ does not have to be used. Unless an employee makes it expressly clear their undertaking is a personal one, it will be deemed to have been given by the employer practitioner.
By now you may realise the earlier question was a trick – all three examples are undertakings. Example A is an undertaking given on behalf of the client, while B and C are personal undertakings given by the practitioner.
Every person in your practice needs to be clear about who is authorised to give undertakings and in which circumstances.
What checking and approval protocols do you have in place?
Are these protocols set out in writing?
Should you keep a register of undertakings – especially those relating to time and money?