New guidance gives clarity on solicitors undertakings
Solicitors’ leaders today published guidance on how solicitors can best deal with the risks associated with accepting undertakings given by corporate entities such as companies and limited liability partnerships (LLPs), which are regulated by the Solicitors Regulation Authority (SRA) and others.
This issue was highlighted in the case of Harcus Sinclair LLP v Your Lawyers Ltd [2021]* where it was noted that the courts do not have the same power to enforce undertakings against corporate entities, as they do against individual solicitors, who are officers of the court.
Many practitioners mistakenly assumed that undertakings given by corporate entities could be enforced under the supervisory jurisdiction of the court – in the same way as an undertaking given by a solicitor, either personally, or on behalf of an unincorporated partnership.
This is not a new issue, as incorporated entities have been around for a long time.
Although not subject to the court’s inherent jurisdiction, corporate entities are nonetheless bound by SRA regulations.
A breach of an undertaking could lead to a fine or imposition of sanctions by the SRA or the Solicitors Disciplinary Tribunal.
Law Society of England and Wales president I. Stephanie Boyce said: “Undertakings play a crucial role in the efficient running of many types of transactions and legal business.
“This is an important area for all solicitors, whether working in private practice, in-house or as freelance solicitors working for non-SRA authorised entities, not least because a breach of undertaking may be tantamount to professional misconduct.
“Conveyancing and litigation solicitors should particularly take note, as these practices rely on the giving and receiving of undertakings.
“This practice note not only provides guidance on how to proceed if one of the parties to a matter is represented by an LLP or a company, but also provides information about how best to mitigate the risks around accepting undertakings from such entities, and what other enforcement options may be available.
“I strongly urge all our members to read this guidance, so they can comply with their professional obligations.”
Notes to editors
Read the new practice note on professional undertakings
An undertaking is a commitment by a solicitor to do (or refrain) from doing something. It can be enforced against a solicitor or solicitors’ firm (an authorised body) by the courts.
* Read more about Harcus Sinclair LLP v Your Lawyers (2021) Ltd
Read the UK Supreme Court’s decision in Harcus Sinclair v Your Lawyers
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