Undertakings and Trust Conditions
Undertakings and trust conditions are topics that often generate questions from lawyers. In some cases, undertakings are drafted quickly and the parties later find that the wording used in the undertaking is unclear. Sometimes contingencies arise that are not addressed in the undertaking and the parties disagree on how to deal with the situation. In other cases, lawyers who are subject to trust conditions wish to withdraw from representing clients or decide to close their practices and are uncertain of their obligations.
Lawyers' obligations in respect of undertakings and trust conditions are dealt with under rules 5.1-6 and 7.2-11 of the Rules of Professional Conduct (the "Rules") and the commentaries to these rules. Lawyers must not give an undertaking that cannot be fulfilled, must fulfill every undertaking given, and must honour every trust condition once accepted [rule 7.2-11 of the Rules].
Unless clearly qualified, a lawyer's undertaking is a personal promise and responsibility. The person who accepts a lawyer's undertaking or promise is entitled to expect that the lawyer personally carry it out. If a lawyer does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. Using the phrase "on behalf of my client" even in the undertaking itself does not release the lawyer from the obligation to honour it. A trust condition, once accepted, is also an obligation that a lawyer must honour personally. As a result, lawyers should not accept trust conditions that are unreasonable or cannot be fulfilled personally. When a lawyer accepts property subject to trust conditions, the lawyer must fully comply with the conditions, even if the conditions later appear unreasonable [commentary, rule 7.2-11 to  of the Rules].
The following are some practice tips for giving, accepting, and dealing with undertakings and trust conditions:
- Before accepting an undertaking or imposing a trust condition, confirm that the individual providing the undertaking or accepting the trust condition is a lawyer (or a paralegal acting within his or her scope of practice).
- If you are unable or unwilling to honour a trust condition imposed by someone else, the subject of the trust condition should be immediately returned to the person imposing the trust condition, unless its terms can be forthwith amended in writing on a mutually agreeable basis.
- Do not give an undertaking or trust condition that cannot be fulfilled.
- Fulfill every undertaking given in a timely manner.
- Honour every trust condition once accepted.
- Ensure that the wording of the undertaking or trust condition is clear, unambiguous, and explicit.
- Ensure that the undertaking or trust condition is set out in writing.
- Ensure that any amendments to the undertaking or trust condition are set out in writing.
- Clearly state that you do not intend to accept personal responsibility for the undertaking, if this is your intention.
- Consider imposing a time period in which the undertaking must be fulfilled or trust conditions must be met.
- If the obligations in the undertaking rely on certain events occurring, indicate what will happen if these events do not occur.
- Record the date upon which the undertaking must be fulfilled or trust conditions must be met in your calendar and other tickler or reminder system(s).
Changes to Paralegal Training and Licensing Work continued this fall to implement reforms to the Accreditation and Audit Framework for Paralegal education programs, as recommended by thereport of the Paralegal Standing Committee that was approved by Convocation in February. The report establishes more stringent standards and processes for approving college programs; the introduction of a mandatory re-accreditation process requiring colleges to renew their accreditation on a five-year cycle; and the implementation of a fee structure for accreditation and audits.
Changes also include the introduction of substantive law questions to the Paralegal Licensing Examination, additions that will make the Examination broader and give it the same rigour and fairness as the Licensing Examinations for barristers and solicitors. The new Examination will launch in August 2015.
Electronic annual fee billing implemented New for 2015, lawyers and paralegals will receive their annual fee invoice through the LSUC Portal. Paper invoices are no longer being produced. In mid-December, lawyers and paralegals will receive an email notification from the Law Society that their 2015 invoice is available. Lawyers should visit the LSUC Portal to ensure that the Law Society has their current email address.
Complete your CPD Hours by December 31 Lawyers and paralegals must complete and report their CPD Hours by December 31, to avoid a $100 late fee and referral for suspension. Remember to enter hours in the LSUC Portal early as high traffic near the deadline may result in slower response times.
Business Development for Women Lawyers - a Justicia CPD The Women's Law Association of Ontario and The Law Society of Upper Canada are pleased to present an interactive lunch-time CPD program on business development for women lawyers. Join us to learn about: self-promotion and developing a personal brand, how to create a marketing plan, how to effectively approach Business Development, and more.
Establishing a Lawyer-Client Relationship On October 1 amendments to the Rules of Professional Conduct reflecting the Federation of Law Societies' Model Code came into effect. Visit the Gazette to read the first of a series of articles to assist lawyers in understanding the amended rules.
Developing Strategies for Change: Addressing Challenges Faced by Racialized Licensees The Law Society's Challenges Faced by Racialized Licensees Working Group has prepared a consultation paper that outlines the challenges faced by racialized licensees at all career stages and includes a series of questions for the professions to consider and comment upon. Additional ideas are also welcome. Written submissions should be sent to the Law Society by March 1, 2015. Consultation meetings will take place across the province and will include discussions about the lawyer and paralegal rules on discrimination and harassment and the importance of these rules to overall practice management.
The Law Society Referral Service continues to evolve. Referrals are now available 24 hour hours a day with an immediate automated response. More information about joining the LSRS (PDF).
Bencher Election 2015 The next bencher election will be held on April 30, 2015. The Law Society of Upper Canada is mandated to govern the legal profession in the public interest. Benchers sit as members of Convocation to fulfill that mandate. More information about the election and becoming a candidate.
Do you provide legal services to the public? A new Directory section in the LSUC Portal now lets you indicate up to eight areas of law that members of the public can consult you about. Very soon, members of the public will be able to search for this information in the Lawyer and Paralegal Directory. Please consider helping the Law Society with this initiative by visiting the Directory tab in the LSUC Portal and filling in the areas of law or legal services you provide to the public.
Annual reports available in Portal starting January 2Lawyers and paralegals may access the 2014 Annual Report through the LSUC Portal beginning January 2, 2015. The annual report is due March 31, 2015. Licensees who fail to file their annual report by May 30, 2015, will be charged a $100 late fee and be subject to administrative suspension.
December 31 - Failure to renew the Certificate of Authorization for Professional Corporation by this date will result in expiry of Certificate.
December 31 - Final date for lawyers and paralegals subject to the CPD Requirement to complete all 12 CPD Hours and record them on the LSUC Portal. Failure to complete and record CPD Hours will result in a $100 late fee and referral for suspension.
January 1 - 2015 Annual Fees due.
January 1 - Foreign Legal Consultant annual renewal fee and form due for an FLC approved prior to April 2003. Failure to pay the fee and submit the form with insurance will result in expiry of permit. An FLC approved after April 2003 must pay the annual renewal fee and file the renewal form with insurance on the anniversary month of approval.
January 15 - Application due for Pre-Authorized Monthly Payment Plan for annual fee.
January 29 - Convocation
January 31 - Affiliation report due.
January 31 - Multi-Discipline Partnership report due.
January 31 - Certified Specialist annual fee and annual certification report due. Failure to submit report and payment by this date will result in revocation of certification.
January 31 - Law Society Referral Service subscription fee due.
January 31 - LAWPRO 2014 Fourth Quarter Real Estate and Civil Litigation Levy Surcharge filings and applicable payments due.