A solicitor who fails to honour an undertaking is prima facie guilty of professional misconduct. Consequently, the Office for the Supervision of Solicitors will expect its implementation as a matter of conduct.
1. Professional conduct obligations can be more onerous than legal obligations. For example, if an undertaking is given in the course of representing a party to a dispute, the resolution of the dispute will not necessarily discharge the undertaking.
2. Neither the OSS nor the Solicitors Disciplinary Tribunal have power to order payment of compensation or to procure the specific performance of an undertaking. The only step open to the OSS is to take disciplinary action for failure to honour the undertaking. See Chapter 30, p.842 and Chapter 31, p.856 for details of the disciplinary process. For enforcement by the Court see 18.16, p.358.
3. The OSS expects solicitors to honour undertakings for so long as their names remain on the roll and regardless of whether or not they hold practising certificates. The Tribunal has power to consider allegations against a former solicitor relating to a time when he or she was a solicitor.
4. The giver cannot unilaterally withdraw from an undertaking once the recipient has placed reliance on it.
5. The OSS has no power to order the release of a solicitor from the terms of an undertaking. This is a matter for the Court, or the person entitled to the benefit of the undertaking.
6. In certain circumstances, the OSS can give notice, on receipt of a request from the giver of an undertaking, that, unless steps are taken within a specified time by the recipient, the OSS will not consider a complaint in respect of it, e.g. where the recipient is required to take some action, but has not done so. The request should be made in writing to the OSS (see p.xv for contact details).
7. Subject to note 6 above, a solicitor cannot claim to be released from an undertaking on the basis that the recipient has been slow in drawing attention to the breach, although this is a matter to which the OSS may have regard if a complaint is made.
8. The OSS will not become involved where:
(a) the undertaking has been procured by fraud, deceit or, in certain circumstances, by innocent misrepresentation; or
(b) the performance of the undertaking turns on a disputed point of law.