How can I keep track of my undertakings?

Practitioners are acutely aware that a breach of an undertaking can be characterised as unsatisfactory professional conduct¹ or professional misconduct.² As a result, there are some practitioners who refuse to give undertakings.

A refusal to give an undertaking is possible when negotiating on a matter but may become more problematic in court particularly if the court requests a solicitor’s undertaking. The breach of an undertaking to the court is contempt.³ As noted in QLS Guidance Statement No. 1 - Undertakings, a solicitor is never obliged to give nor to accept an undertaking and careful consideration should be given if a practitioner decides to provide one. Guidance Statement No. 1 – Undertakings provides clear parameters and brings to the practitioner’s attention what issues they should consider if they decide to provide an undertaking. The specific wording of the undertaking must be accurately recorded.

There used to be an informal process where a solicitor would place a note on the front of their brief if an undertaking had been given by the solicitor. Due to the use of electronic files and the disappearance of paper files, these hand written notes have also disappeared but they were a salient reminder of the existence of the undertaking and there may be a place for their return in some form. It is easy for verbal undertakings given in court to be forgotten once the matter has concluded but the undertaking may still be on foot and continue for an indefinite period of time.

As was noted in Gonzales v State Coroner of New South Wales (No 2):

The Supreme Court of New South Wales operates upon the basis that legal practitioners appearing before it will comply with undertakings given to the Court. The Court functions on the basis that legal practitioners should not need to be reminded of their obligations in that respect.⁴

As noted in the QLS Guide to appropriate management systems,⁵ a register of undertakings including authorisations, discharge and dates should be kept by all practices of any size. The Guide also provides appropriate guidelines with regard to managing the giving of undertakings.

1 Legal Services Commission v Petschler [2015] QCAT 284.

2 Legal Services commissioner v Wrightway Legal [2015] QCAT 174.