Overview of Undertakings and Trust Conditions

Lawyers and paralegals must not give an undertaking that cannot be fulfilled, fulfill every undertaking given and honour every trust condition once accepted [rule 7.2-11 of the lawyers’ Rules of Professional Conduct (lawyers’ Rules); subrules 2.02(1) and (4) of the Paralegal Rules of Conduct (Paralegal Rules)]. This also applies to any professional or practice-related promises the lawyer or paralegal may give.

Personal Promise or Responsibility 

Unless clearly qualified, a lawyer or paralegal’s undertaking is a personal promise and responsibility [rule 7.2-11 of the lawyers’ Rules); subrule 2.02(3) of the Paralegal Rules]. The person who accepts a lawyer or paralegal’s undertaking or promise is entitled to expect that the lawyer or paralegal personally carry it out. Using the phrase “on behalf of my client” even in the undertaking itself does not release the lawyer or paralegal from the obligation to honour it. If you do not intend to take personal responsibility, this should be clearly stated in the undertaking or promise provided [commentary to rule 7.2-11[1] 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, you should not accept trust conditions that are unreasonable or cannot be fulfilled personally. When you accept property subject to trust conditions, you must fully comply with the conditions, even if the conditions later appear unreasonable [commentary to rule 7.2-11[2] to [6] of the lawyers’ Rules; sections 6-9 of Guideline 3 of the Paralegal Professional Conduct Guidelines].

Confirmed in Writing 

Paralegals are required to give their undertakings in writing or confirm undertakings in writing as soon as practicable after giving them [subrule 2.02(2) of the Paralegal Rules]. Although not required by the lawyers’ Rules, lawyers should also give their undertakings in writing or confirm undertakings in writing [commentary to rule 7.2-11[1] of the lawyers’ Rules]. In all cases, undertakings should be unambiguous in their terms, including a time period for fulfillment. It may be appropriate to provide for contingencies (e.g., if the obligations in the undertaking rely on certain events occurring, indicate what will happen if these events do not occur).  Before accepting an undertaking or promise, you should also confirm that the individual providing it is a lawyer or paralegal.

Trust conditions should be clear, unambiguous, and explicit and should state the time within which the conditions must be met. At the time the promise is delivered, trust conditions should be imposed in writing and communicated to the other party. Any variations to the trust conditions should also be confirmed in writing [commentary to rule 7.2-11[2] of the lawyers’ Rules; section 7 of Guideline 3 of the Paralegal Professional Conduct Guidelines].

Enforcement and Discipline

It should be noted that a court or a tribunal may enforce a lawyer or paralegal’s undertaking, trust condition or other practice-related promise. The lawyer or paralegal may be brought before a court or tribunal to explain why the undertaking, trust condition or other practice-related promise was breached and ordered to take steps to satisfy the undertaking, trust condition or other practice-related promise or pay damages caused by the breach. The Law Society may also discipline a lawyer or paralegal for breach of an undertaking, trust condition or other practice-related promise, which may result in a finding of professional misconduct.

Additional Resources:

Undertaking to Protect Unpaid Account

Satisfying Unfulfilled Undertakings and Trust Conditions