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Alice H
Alice H, Solicitor/Partner
Category: Law
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Experience:  Partner in national law firm
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Is there any legal authority that provides that a solicitor

Customer Question

Is there any legal authority that provides that a solicitor that relied on an undertaking from another solicitor should provide a formal discharge when the undertaking has been complied with?
Submitted: 2 years ago.
Category: Law
Expert:  Alice H replied 2 years ago.
My name is***** and I'm happy to help with your question today. I need to ask you some preliminary questions to be able to help you.
-Could you explain your situation a little more?
Customer: replied 2 years ago.

I have supplied an undertaking and fully complied with it. The solicitor on the other side isn't providing me with the courtesy of discharging me. Is there any authority to say that he should?

Expert:  Nicola-mod replied 2 years ago.
Hello,
It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.
I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 2 years ago.

Thanks Nicola. I have to say that I'm quite disappointed with the experts on here so far. They seem to be able to answer very easy legal questions which - google would easily be able to provide an answer for - but not any difficult questions. I think I will be cancelling my membership as I haven't been very impressed so far.

I'm happy to wait for an answer IF an expert can answer my question.

Thanks.

Expert:  Nicola-mod replied 2 years ago.
Hello,
I am sorry to hear that.
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Expert:  Alice H replied 2 years ago.
Apologies for the delay. I have been involved in a 3-day criminal trial which has kept me away. I am happy to have a look at this for you today: could you let me know what type of undertaking was give e.g. was this a conveyancing transaction?
Expert:  Alice H replied 2 years ago.
I have been reviewing the SRA Handbook, Law Society practice and guidance notes and have also conducted a case search using LexisNexis. There is no authority to say that a person to whom an undertaking has been given has to formally release you from that undertaking. All the guidance indicates that once the undertaking has been performed as agreed then you are released from your promise.
The Solicitors Regulation Authority (SRA) Handbook defines an undertaking as:
“a statement, given orally or in writing, whether or not it includes the word “undertake” or “undertaking”, made by or on behalf of you or your firm, in the course of practice, or by you outside the course of practice but as a solicitor or REL, to someone who reasonably places reliance on it, that you or your firm will do something or cause something to be done, or refrain from doing something.”
Chapter 11 of SRA Code of Conduct states in the introduction that solicitors must “act in a manner which promotes the proper operation of the legal system” and that “This includes your conduct in relation to undertakings;.” It goes on to state that whilst “there is no obligation to give or receive an undertaking on behalf of a client …. if you do, you must ensure that you achieve the outcomes listed in this chapter.”
The Chapter then goes on to provide at Outcome O(11.2) that a solicitor “ perform all undertakings given by [them] within an agreed timescale or within a reasonable amount of time;” and provides accompanying Indicative Behaviour provisions which require “an effective system which records when undertakings have been given and when they have been discharged” (IB 11.5) and that “where an undertaking is given which is dependent upon the happening of a future event and it becomes apparent the future event will not occur, notifying the recipient of this.”
Note 1 suggests that Chapter 11 “be read in conjunction with Chapter 7 (Management of your business) in relation to the system you will need to have in place to control undertakings.” It is worth noting, however, that the relevant provisions from Chapter 7 are:
O(7.2) you have effective systems and controls in place to achieve and comply with all the Principles, rules and outcomes and other requirements of the Handbook, where applicable;
O(7.3) you identify, monitor and manage risks to compliance with all the Principles, rules and outcomes and other requirements of the Handbook, if applicable to you, and take steps to address issues identified;
whilst the most relevant related Indicative Behaviour IB (7.3) requires that firms identify and monitor “financial, operational and business continuity risks including complaints, credit risks and exposure, claims under legislation relating to matters such as data protection, IT failures and abuses, and damage to offices.”
Undertakings are also referred to elsewhere in the rules governing solicitors.
The guidance note to Regulation 4: Requirements for sole practitioners of the SRA Practising Regulations 2011 provides at (iii) (d) that practitioners give consideration to “a system for ensuring that undertakings are given only when intended, and compliance with them is monitored and enforced” when producing a compliance plan”, whilst a similar provision is included in the guidance note (iii) (d) of the SRA Authorisation Rules 2011 in relation to authorised bodies.
All this seems to indicate that the onus is on you to keep a record of the undertaking on your file and office register and make a note when you have discharged your obligation. Nothing in the handbook, SRA website or Law Society website says that the other solicitor has to formally release you although it would be courteous and probably good practice for him to give this in writing.
Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2849
Experience: Partner in national law firm
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Customer: replied 2 years ago.

Excellent many thanks - finally a decent lawyer!


 


THank you for your assistance.

Expert:  Alice H replied 2 years ago.
My pleasure. Have a great weekend.

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