Please find below some resources that may be able to assist you in managing your undertakings.
Fact Sheet
It is important that you and your staff know and understand the implications of providing undertakings and that compliance with your practice’s policy on the giving or receiving of an undertaking is regularly reviewed.
A breach of an undertaking may lead to:
- A charge of contempt of court;
- Civil liability in contract or tort; or
- Disciplinary proceedings.
It is important to implement an office policy on who may provide an undertaking, what type of undertaking may be provided, and the systems and processes for recording undertakings on a file (whether electronic or paper file records). All existing staff, and all new staff during their on-boarding process, should be able to identify (or at least be on notice for) undertakings, and be made aware of the practice’s policy on the giving and receiving of undertakings.
Maintaining a register of undertakings can assist with a record of undertakings provided and their expiry or due dates.
Once an undertaking is given only the recipient or a court of competent jurisdiction can relieve us of its performance.
The duty in relation to undertakings in the Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’)
The professional duty in relation to undertakings is reflected in Rule 6 of the Australian Solicitors Conduct Rules 2012 (Qld) which states:
6. Undertakings
6.1 A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.
6.2 A solicitor must not seek from another solicitor, or that solicitor’s employee, associate, or agent, undertakings in respect of a matter, that would require the co-operation of a third party who is not party to the undertaking.
Incorporated Legal Practices & Supervision
The Legal Practitioner Directors of Incorporated Legal Practices (ILPs) are required to ensure appropriate management systems are implemented under section 117(3) Legal Profession Act 2007 (Qld). See the QLS ILP Information Kit and Guide to Appropriate Management Systems for more information.
Checklist
Below is a sample range of issues to consider when developing your legal practice’s policies and procedures in relation to undertakings.
- Explain implications to staff of providing an undertaking.
- Ensure that the wording of your undertaking is carefully considered and not ambiguous or unclear. You will be required to comply with the exact wording of any undertaking given.
- Keep record of the training provided to new and existing staff.
- Ascertain what your policy is with regard to providing undertakings in your practice area(s).
- Eg: in conveyancing matters an undertaking is usually given prior to settlement to use transfer documents for stamping purposes only pending settlement. You may need to consider different procedures for different areas of practice. What type of undertakings will you give?
- Who is able to provide an undertaking in your practice?
- Who is able to agree to receive an undertaking in your practice?
- How do you record an undertaking on a file? – paper file records/electronic file records. Remember to record the verbal undertaking that you may give in court.
- Are undertaking expiry or due dates recorded in the firm’s calendar/diary management system?
- Do you have an undertakings register?
- How frequently do you review the undertakings register? Is the review scheduled in your calendar/diary system?
- Does your file archiving process include a check that undertakings have been discharged?
Undertakings Register example
