Ethics Column

Gino Dal Pont

Professor, Faculty of Law, University of Tasmania

The importance of solicitors honouring their professional undertakings cannot be downplayed. At the same time, not every undertaking falls within the scope of the court’s summary enforcement jurisdiction. That the court’s jurisdiction here has boundaries should not, however, encourage a lax approach to giving undertakings.

My previous column, titled “The Lawyer Undertaker”, targeted the need to comply with lawyer undertakings. The significance of such compliance is not confined to scope for liability in contract; noncompliance can sound in disciplinary sanction. Moreover, in a longstanding initiative unique to lawyers, courts have assumed a summary jurisdiction to enforce lawyer undertakings — independent of any contractual claim — based on an inherent right to require officers of the court to observe a high standard of conduct.1 As an alternative to specific enforcement, the jurisdiction can be utilised as a vehicle to require a defaulting lawyer to compensate a person who has suffered from the lawyer’s non-compliance.

It is accordingly unsurprising that the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, soon (at the time of writing) scheduled to enter into force in Western Australia, prescribe that “[a] solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure [its] timely and effective performance … unless released by the

Ethics Column

recipient or by a court of competent jurisdiction”.2 The text of this rule, which reflects the general law, merits at least two points by way of elaboration, which function to acknowledge that the obligation in question is not entirely open-ended.

The first is the reference to the undertaking being “given … in the course of legal practice”. In view of the mischief underscoring the rule, it is unsurprising that what is “in the course of legal practice” admits no limited interpretation. In Hartnell v Birketu Pty Ltd, 3 for instance, the informality of the occasion at which the alleged undertaking was proffered (at a “nonworking lunch”) did not, according to the New South Wales Court of Appeal, detract from the context in which the principal of a law practice gave the undertaking, being to reassure the client that it would not be out of pocket by reason of a fraud perpetrated by a solicitor employed by the practice.

At the same time, the “in the course of practice” threshold can have a limiting effect as to the courts’ summary jurisdiction (as distinct from an available claim in contract). Occasions might arise where, despite the author of the undertaking being qualified as a lawyer, such an undertaking is not given “in the course of practice” or, expressed in another way, in a “professional capacity”. The 2021 decision of the United Kingdom Supreme Court in Harcus Sinclair LLP v Your Lawyers Ltd4 presents as a case in point. It involved one law practice undertaking to another practice not to accept instructions from claimants in group (class action) litigation. It was held that the undertaking was not given in a professional capacity, for which reason it was not amenable to the court’s inherent supervisory jurisdiction over solicitors.

In so ruling, their Lordships accepted that “common and relevant indicators” of what can be construed as a solicitor’s undertaking is that “it is given in connection with a transaction involving a client or if it is given to the court or to a third party”, adding that “[o]ther such indicators are whether the solicitor is acting on instructions and whether the solicitor is acting in a personal or business capacity rather than a professional capacity”.5 None of these indicators surfaced on the facts in issue.

The second point targets the qualification “unless released by the recipient or by a court of competent jurisdiction”. Assuming that the recipient in this context is fully informed and not unduly pressured in this regard, there is nothing to preclude him or her from releasing the lawyer from the undertaking. As the text of the rule envisages, there are occasions where the court can effectuate such a release. Cases where compliance proves impossible (as distinct from inconvenient) may justify this, but without prejudice to the court ordering compensation in lieu.6 But in cases where non-compliance is excusable — say, because the lawyer cannot be seen to be at fault7 — release may be plenary.

The upshot of the foregoing is that not every undertaking given by a person with legal qualifications is a solicitor’s undertaking, with the consequences that may ensue from such a characterisation (which is just as well, one may imagine, for lawyer-politicians). Nor are solicitors’ undertakings invariably enforced. It cannot be forgotten, though, that any such tempering of the scope of lawyer undertakings functions against the primary rule informed by strict adherence. In any case, even outside the rule’s parameters, the spectre of an Australian lawyer whose word proves other than their bond hardly promotes confidence in lawyers as a collective.

End Notes

1 Countrywide Banking Corporation Ltd v Kingston [1990] 1 NZLR 629 at 640 per Wylie J. 2 Rule 6.1. 3 (2021) 392 ALR 154 at [140] per Gleeson JA, with whom Basten and McCallum JJA concurred. 4 [2021] 3 WLR 598. 5 Ibid at [105]. 6 Commissioner of Inland Revenue v Bhanabhai [2006] 1

NZLR 797 at [165] per Laurenson J. 7 Law Society of New South Wales v Waterhouse [2002]

NSWADT 204 at [17] (where the solicitor’s failure to comply with an undertaking was explained on the ground that he had been deceived into giving the undertaking).