Undertakings made in the course of our work for and on behalf of clients enable legal services to be delivered in a timely and efficient manner. Our strict observance of an undertaking ‘is an important component’ of our ethical obligations we owe to the courts, our clients and our colleagues.1
It is a promise to do or not to do something.2 It must be honoured and we must ensure it is delivered in a timely and effective manner.3 An undertaking should never be given without regard to its potential consequences.
Remember:
- it is usually seen as personal4 to us (unless otherwise stated);
- it must be given in a professional capacity;5
- it should be given in clear and unambiguous terms;
- it must be capable of performance at the time it was made;
- it must be performed in a timely and effective manner;6
- we must not seek from our colleagues, their employees or associates, an undertaking in respect of a matter that would require the cooperation of a third party who is not a party to the undertaking.7
A breach of undertaking can lead to:
- a charge of contempt of court;
- civil liability in contract or tort; or
- a disciplinary proceeding.8
When giving an undertaking, make certain that if disclaiming personal liability, this is clear from the undertaking itself. The Law Institute of Victoria has recommended to its members using the phrase ‘I am instructed that my client undertakes …’.9
We should only give personal undertakings where we are able to ensure fulfilment and have control in relation to it.10
Before we or our employee11 or agent gives an undertaking, remember that it is a matter of honour for the undertaking to be performed in a timely and effective manner. Once an undertaking is given only the recipient or a court of competent jurisdiction can relieve us of its performance.
1 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) 723.
2 Ibid.
3 Australian Solicitors Conduct Rules 2012 (Qld) r 6.1.
4 Bhanabhai & Burgess v Commissioner of Inland Revenue [2007] 2 NZLR 478.
5 Ibid.
6 Ibid.
7 Australian Solicitors Conduct Rules 2012 (Qld) r 6.2.
8 Legal Services Commissioner v McColm [2006] LPT 14.
9 Law Institute of Victoria, ‘Ethics Guidelines’, Undertakings (Web Page), <https://www.liv.asn.au/PDF/For-Lawyers/Ethics/2014-Guidelines-on-Undertakings.aspx>.
10 Ibid [43].
11 In general, an undertaking given by our employee or agent will bind us professionally: Enenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118. An undertaking given by our clerk at a settlement is seen as an undertaking by the legal practice, even if given without the proper authority of the partner, sole practitioner or legal practitioner director: Hawkins v Gaden (1925) 37 CLR 183.