Many firms have closed in recent months and, in this context, the issue of whether undertakings given by a firm that is now closed can, or should, be taken over by the new solicitors nominated by clients of the former practice often has to be considered.

When a firm closes, the original undertakings furnished on behalf of that firm fail, because the solicitor or solicitors who gave those undertakings no longer have control of the matter and cannot achieve compliance.

A solicitor should be aware that the view of the Guidance and Ethics Committee is that, when a file is transferred in any circumstances from one firm to another, a solicitor should not take over any undertaking given on behalf of the first firm without as full an investigation of the matter as they would carry out if they themselves had been giving the undertaking in the first place. This is even more important where the undertaking was given by a solicitor who has now ceased practice, particularly where the practice closed following regulatory action taken by the Law Society.

In conveyancing transactions, where the undertaking relates to a mortgage and the second solicitor cannot immediately satisfy him/herself in respect of the title, a better option might be for the deeds on the file to be returned to the lender. The lender itself always has the option of calling for the deeds on foot of the original undertaking.

The second solicitor cannot be forced by the lender, or any other recipient of an undertaking, to assume the burden of work left unfinished by another solicitor, nor can (s)he be forced to give a straight replacement undertaking in substitution for the undertaking given by the first solicitor. The first solicitor may have done something in relation to the title that makes it impossible for the new solicitor to certify the title or to give an unqualified undertaking in respect of it.

First published March 2010.