The Lawyer Undertaker

This column is not targeted at lawyers who conduct business as funeral directors discretely from, or as an adjunct to, their legal practice. (As an aside, a cursory search of the Internet reveals examples of this within the Australian context). Instead, “lawyer-undertaker” refers to a much more frequent reflection of legal practice, namely the giving of undertakings by lawyers.

The seriousness with which the profession and the law views lawyer undertakings can be seen as a reflection of the “my word is my bond” motto (although the latter can trace its genesis to the sixteenth century to facilitate traders making legally binding agreements sans a written pledge). Adherence to (and enforceability of) lawyers’ undertakings goes to the core of the trust and confidence that can be placed in lawyers — by their clients, by other lawyers and by the court. As a disciplinary tribunal has observed:1

Undertakings are given by legal practitioners for the specific purpose of enabling legal activities to be carried out. Other persons rely on those undertakings. The undertakings are personal to the legal practitioner and bind that practitioner … as a matter of professional conduct and comity, and will be enforced by the Courts because legal practitioners are officers of the Court and because without enforcement undertakings would be worthless, persons and Courts would be unable to rely on the word of the legal practitioner and this aspect of legal practice, that demands compliance for legal efficiency, would collapse.

As compliance with undertakings is, as noted above, “a matter of professional conduct”, it is hardly surprising to find manifold examples of lawyers being disciplined for failing to comply with undertakings.2

The very nature of an undertaking, moreover, means that it not infrequently overlaps with contract. If so, independent of any disciplinary response, the person(s) to whom a lawyer’s undertaking is given can sue thereon — under the general law of contract — should the lawyer not fulfil its terms. A lawyer may escape liability here if the undertaking was given in an agency capacity (typically for a client). But this can prove so only for undertakings clearly given on behalf of a client (any ambiguity here usually prejudicing the lawyer)3 within the lawyer’s authority.

What is unique, though, to the legal practice environment is the court’s longstanding summary jurisdiction to enforce lawyers’ undertakings, based on its inherent right to require its officers to observe a high standard of conduct. While the jurisdiction has a traditionally “disciplinary” slant (though not equating to professional discipline noted above), it can be utilised to require a defaulting lawyer to compensate a person who has suffered from that default. Importantly, such an order is not dependent on an existing enforceable contractual (or other civil) right in the victim.4 Procedural benefits, in addition, arise out of a summary proceeding: it does not automatically or usually involve pleadings, discovery or oral evidence, thereby depriving the lawyer of certain advantages that ordinarily avail a defendant on trial.

While the disciplinary slant of this jurisdiction confines its exercise, it is said, to cases of behaviour meriting reproof5 (as distinct from that punctuated by bona fides), it should not be assumed that the informality of the occasion or setting at which an undertaking is proffered will serve to excuse non-compliance.6 And while the supervisory jurisdiction targets only undertakings given in the capacity as a lawyer, the breadth of what can fall within legal practice for this purpose may not prove an undue constraint thereon.7

It stands to reason that, from an inherent, disciplinary or contractual jurisdiction, lawyer undertakings are viewed with jealousy. The seriousness of failing to strictly adhere to undertakings accordingly cannot be downplayed.

Gino Dal Pont
Professor: Faculty of Law
Interim Dean and Head of School of Law
University of Tasmania

1. Copini [1994] NSWLST 25.
2. See, for example, Law Society of New South Wales v Martin [2002] NSWADT 27; Law Society of New South Wales v Waterhouse [2002] NSWADT 204.
3. See, for example, Gorman v Norton (1887) 8 LR (NSW) L 479.
4. Harcus Sinclair LLP v Your Lawyers Ltd [2022] AC 1271 at [149] per Lords Briggs, Hamblen and Burrows (referring to “the courts [being] concerned to uphold particularly high standards of conduct irrespective of some of the rules imposed in contract law”).
5. See, for example, Bentley v Gaisford [1997] QB 627.
6. See, for example, Hartnell v Birketu Pty Ltd (2021) 392 ALR 154 at [140] per Gleeson JA, with whom Basten and McCallum JJA concurred (where a lawyer’s undertaking was enforced despite being given at a “non‐working lunch”).
7. Cf Harcus Sinclair LLP v Your Lawyers Ltd [2022] AC 1271, to be discussed in the ensuing column.