8. Undertakings Flashcards
A solicitor must act with …… (Principle 4). One aspect of acting with …… is for a solicitor to keep their word. So, if a solicitor makes a promise to do something, the person to whom that promise is made should be able to rely on the solicitor in fact doing so. An undertaking is a type of ……
Integrity X2
Promise
Undertakings are often given by solicitors in order to ….. the path of a transaction.
In essence, an undertaking is an enforceable promise. In the SRA Glossary, an undertaking is
defined as:
a statement given ….. or in ……., whether or not it includes the word ‘undertake’ or ‘undertaking’ to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing
something.
A solicitor must perform all undertakings given by them and do so within an agreed …..
or, if no timescale has been agreed, then within a …… amount of time (Paragraph 1.3).
A solicitor is not obliged to give or accept an undertaking. A solicitor should think …..
when considering whether to give an undertaking. Once the undertaking has been relied
upon by the recipient, it can be …… only by agreement.
Smooth
Orally or writing
timescale
Reasonable
Carefully
Withdrawn
Should there be a breach in failing to uphold undertaking:
Solicitors must be able to be able to justify their decisions and actions and demonstrate their
compliance with their obligations under the SRA’s regulatory arrangements (Paragraph …).
A solicitor should therefore maintain an effective system that records when undertakings have
been ….. and when they have been …….
7.2
given
discharge
From the solicitor’s point of view, it is advisable to give undertakings in …., so that there can be
no dispute as to the terms of the undertaking. If, however, it is necessary in the circumstances
to give an oral undertaking, the solicitor should ensure that an ……. note recording the undertaking is placed on the client’s file and that it is confirmed in writing as soon as possible.
An undertaking is not a …… For example, there is no obligation for consideration (whether in monetary or other forms) to be present for an undertaking to be enforceable against a solicitor. However, given the binding effect of undertakings, and the consequences
for breach, solicitors should take just as much care in drafting undertakings as they would do when drafting a contract for a client. Although not expressly stated in the Code for Solicitors, it is likely that any ambiguity in the wording of the undertaking will be interpreted in favour of its …….
Writing
Attendance
Contract
recipient
A solicitor may be called upon to undertake to perform an act which is outside the solicitor’s
……, such as to forward documents which are not in the solicitor’s possession. The simple fact that the solicitor is unable to perform the undertaking without the cooperation of the client or another third party does not discharge the solicitor’s obligation to ….., and the
undertaking remains enforceable.
Control
Perform
made for the benefit of the solicitor’s client vs on behalf of the client.
Undertakings ‘on behalf’ of a client can exclude …. …… provided expressed in clearest terms.
Personal Liability
Timescale
Paragraph 1.3 provides that the undertaking must be performed within a ‘…… …… of time’. What is
‘reasonable’ will depend upon the facts of each case, and so this element of uncertainty should be a consideration when preparing to give or receive such undertakings.
Reasonable amount
A solicitor must have …. and …… authority from the client before giving any undertakings. When such authority has been received, it may be withdrawn by the client at any time until the solicitor has acted upon it, even if it is expressed to be irrevocable.
Clear and Express
• An undertaking may be enforced by the ……
• The SRA/ Legal Ombudsman/ Solicitors Disciplinary Tribunal do not have the power to
…… an undertaking. However, any breach of an undertaking may be considered a breach of professional conduct, or result in a complaint about services provided by a solicitor which may lead to ….. against the solicitor concerned.
Court
Enforced
Sanctions
