Duhaime's Law Dictionary


Undertaking Definition:

An unequivocal declaration of intention made by a lawyer in the course of his/her practice, addressed to someone who reasonably places reliance on it.

In Kutilin v. Auerbach, Justice Esson of the Court of Appeal for British Columbia adopted these words, relying on the Professional Conduct of Solicitors (1986), the Law Society, London:

"The nature of a lawyer's undertaking has frequently been considered by the courts, generally in the context of summary proceedings taken to enforce the undertaking.... The law governing this matter has come to us from England and it is to the English authorities which we have generally looked for guidance.

"An undertaking is any unequivocal declaration of intention addressed to someone who reasonably places reliance on it and made by: a) a solicitor in the course of his practice, either personally or by a member of his staff; or b) a solicitor as 'solicitor', but not in the course of his practice; whereby the solicitor (or in the case of a member of his staff, his employer) becomes personally bound."

In Hammond v Law Society, Justice Southin of the same Court:

"(U)ndertakings are regarded as solemn, if not sacred, promises made by lawyer only to one another, but also to members of the public with whom they communicate in the context of legal matters. These undertakings are integral to the practice of law and play a particularly important role in the area of real estate transactions as a means of expediting and simplifying those transactions.

"When a lawyer's undertaking is breached, it reflects not only on the integrity of that member, but also on the integrity of the profession as a whole."

In Ontario, Justice Linden of the Ontario High Court wrote, in Valleyfield Construction:

"There is an assumption, well founded, that solicitor's undertakings will be met and the Courts should do whatever is necessary to continue this practice."

Barbara Buchanan wrote this, in 2011:

"... some lawyers are giving or accepting undertakings that are not within their ability to ­control. This is an example of a bad undertaking: 'I undertake to have my client execute the document by December 31, 2011.'

"This undertaking is not within the lawyer’s control because it’s up to the client whether or not the client executes the document. If the client does not execute the document, the lawyer has breached the undertaking and is subject to being reported to the Law Society.

"Never give or accept an undertaking that is not within your control. If a client is supposed to do something, be clear that you aren’t assuming the client’s obligations."

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