Solicitors' undertakings

The term €˜undertaking' is defined in the Code as follows:

"'Undertaking' means a statement, given orally or in writing, 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."

The Code requires lawyers to perform all undertakings "within an agreed timescale or within a reasonable amount of time".

The effect of the wording in the Code should not be underestimated. Any person who relies on a statement that a lawyer will do, or refrain from doing, something may claim that a formal solicitor's undertaking has been given. The word €˜undertaking' need not necessarily have been used. Note also that an undertaking given on behalf of a client will normally be enforceable against the firm unless our liability is specifically disclaimed. As we can only undertake matters under our direct control, you must not give undertakings on behalf of clients.

You must only give undertakings and confirmations in respect of matters which are wholly within your personal professional knowledge, responsibility and control. You must not give undertakings on behalf of clients or in relation to matters which are outside your direct control.

Furthermore, pursuant to the Code:

1. An undertaking can be binding even if it refers to something outside the solicitor's control.
2. Ambiguous undertakings are generally construed in favour of the recipient.
3. Solicitors who fail to honour an undertaking may be guilty of professional misconduct.
4. An undertaking can only be released or cancelled with the written consent of the recipient.
5. In the absence of a specific timescale, an undertaking must be carried out "within a reasonable time".
6. Undertakings are not limited to professional matters. Consider, for example, the unlucky solicitor who promised a hotel patron his party would be no bother. When they were, the solicitor was struck off for breach of an undertaking.

The Law Society has published a good note on this subject. See https://www.lawsociety.org.uk/topics/regulation/professional-undertakings.