Pursuant to rule 7.2-11 of lawyers’ Rules of Professional Conduct and
subrule 2.02(1) of the Paralegal Rules of Conduct, lawyers
and paralegals must fulfill every undertaking given. The person who receives
your undertaking is entitled to expect that you will honour it personally,
unless the undertaking clearly indicated otherwise at the time that it was
given [commentary to rule 7.2-11 of the lawyers' Rules; section 3 of Guideline
3 of the Paralegal
Professional Conduct Guidelines]. Likewise, a trust condition, once
accepted, is an obligation that a lawyer or paralegal must honour personally.
As a result, all undertakings or practice-related promises must
be satisfied and all trust conditions must be honoured before you close your practice
or transfer it to another lawyer or paralegal. If this is not be possible or
practical, you must advise the client and the successor lawyer or paralegal, if
any, of the nature of the undertaking, trust condition or obligation. In such a
case, you must determine
- whether the successor lawyer or paralegal will
honour your given undertaking, trust condition, or obligation
- whether you must satisfy these, and/or
- whether you may be relieved from strict compliance
by the person to whom you gave the undertaking, trust condition or promise, or
to whom you owe the obligation.
If you cannot honour a trust condition before closing or
transferring your practice and the trust condition terms cannot be amended in
writing on a mutually agreeable basis, the subject of the trust condition
should be immediately returned to the person imposing the trust condition.
For a detailed checklist on fulfilling undertakings, trust
conditions and other practice-related promises prior to the closure or transfer
of your practice, consult the Outstanding Undertakings, Trust Conditions,
Obligations, Reporting to the Client section of the Guide
to Closing Your Practice for Lawyers or the Guide to
Closing Your Practice for Paralegals.
Overview of Undertakings and Trust Conditions