“A solicitor should not seek an undertaking from another solicitor, which the first solicitor knows, or ought to know, should not be given” (A Guide to Good Professional Conduct for Solicitors – 3rd edition, para 6.5).

• No solicitor is obliged to give any undertaking,
• No solicitor is obliged to accept any undertaking,
• Undertakings are a matter for negotiation,
• The solicitor should not seek an undertaking in terms the solicitor would not give themselves,
• A solicitor should not seek an undertaking from another solicitor that is specifically prohibited by law.

Solicitors’ independence

Solicitors must maintain their professional independence. Solicitors should not allow themselves to be restricted in their actions on behalf of clients but, equally importantly, must not be restricted by clients in relation to their other professional duties.

The solicitor seeking the undertaking, which they know should not be given, may be under pressure from their client to close a sale or to bring a deal over the line. This pressure must be resisted. The solicitor is the client’s agent, but is an independent agent who is bound by professional rules.

Independence is a core value of being a solicitor. It is an important rule of conduct. This is because the solicitor has many obligations, not only the obligations to their own client. They also have obligations to the courts and other bodies before whom they appear, and the public for whom the existence of an independent profession is an essential means of safeguarding individual rights. In addition, they have duties to the legal profession in general and to their individual colleagues.

Short-term gain but long-term difficulties

If the client wants their solicitor to seek an undertaking that should not be given, the solicitor should explain to their client that, if the solicitor seeks and receives that undertaking, there are potential problems:

• There is no point in being given the undertaking so as to enable a transaction to close, or a deal to be concluded, if there is a high risk of non-compliance because the matter is not in the other solicitor’s control. There will only be a short-term gain.
• The non-compliance by the other solicitor may result in practical difficulties for their own client. There may be difficulties on title in conveyancing matters, or important aspects of a transaction may not be achievable.
• If compliance is not possible, while it will be the other solicitor – the one who gave the undertaking – who will be sanctioned, the solicitor who sought the undertaking will have failed to achieve a successful outcome to their own client’s business.
• There is even an increased risk that the solicitor who sought the undertaking will be sued by their own client.

General examples

All of the examples below are in circumstances where the solicitor seeking the undertaking should know that the solicitor who would be giving the undertaking is not personally in a position to comply with the matter or see that it is complied with:

• Undertakings that rely on the actions of third parties.
• Open-ended undertakings, for example, for costs. Undertakings in respect of costs should relate to specific or quantifiable amounts.
• Undertakings that will follow a chain of other undertakings. Any of them may be unenforceable.
• Undertakings to produce signed documents. These should not be given. Even if drafts of the documents are agreed, a solicitor can never be certain that their client will sign a document.
• Undertakings to produce registered documents within a specified period. This is because registration is not under the solicitor’s control.
• Undertakings to discharge any tax liability for a client. It is unwise for a solicitor to take on this responsibility.

Examples in conveyancing

Solicitors should not seek undertakings such as the following:

• An undertaking by a developer’s solicitor to transfer the common areas in a development to a management company. Some purchasers’ solicitors try to insist on getting such an undertaking, even though it is obviously outside the control of the developer’s/vendor’s solicitor.
• An undertaking by a developer’s/vendor’s solicitor to furnish a copy of the transfer/vesting deed to the purchaser after the transfer has taken place. Instead, the contract should provide that the initial sale of the property will be closed on foot of:

a) An undertaking by the vendor to the purchaser to furnish the vesting deed to the management company, and

b) An undertaking by the management company to the purchaser to furnish a certified copy of the vesting deed to the purchaser on request by, or on behalf of, the purchaser or his successor in title. (See the Conveyancing Committee practice note, ‘Deeds vesting common areas in management companies’).

• An undertaking to provide an executed discharge within a specified time. This is not within the solicitor’s control.
• An undertaking to discharge Land Registry queries. A solicitor should never give this undertaking. The vendor should give it only in relation to mapping queries on the transfer of part of a folio.
• An undertaking requested by a lender’s solicitor from the borrower’s solicitor to furnish a certificate of compliance with planning permission when the house is only partly built. This arises when a borrower is building a house and drawing down the loan in stage payments. The borrower’s solicitor should instead furnish a certificate from the certifier that the house has reached the particular stage, and has been built in accordance with planning permission.

Implications

• Seeking undertakings that should not be given devalues the important currency of undertakings,
• Undertakings are a valuable facility and are essential to make the affairs of clients easier to transact and to oil the wheels of business,
• The solicitors involved should merely be facilitators, with no adverse consequences for either the giver of an undertaking or the recipient of that undertaking.

Firms should give clear guidance on these matters to all staff.