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Ethics Frequently Asked Questions

These FAQs have been published for the benefit of LIV members and you will need to be logged in as a member to view them. The FAQs are sourced from frequent queries to the ethics line and cover a large breadth of topics which will be of assistance to practitioners in their daily practice. Topics include confidentiality, conflicts of interests, inadvertent disclosure, termination of a retainer and much more.

For further assistance on your ethics dilemma, please call the ethics line on 9607 9336.

Disclaimer: The information on this page is intended to be a general guide only. The information is not intended to constitute professional or legal advice, and you should rely on your own inquiries and assessment. The Law Institute of Victoria expressly disclaims any and all liability for any loss or damage arising from reliance upon any information on this page.

Frequently Asked Questions

  • Client Confidentiality

    Two years ago I acted for a person in a successful workcover claim. I have just received a written demand from Centrelink requiring me within 14 days to provide it with full details relating to my client’s claim. My client has moved to live overseas since I acted for him and I do not know his current contact details. How should I respond to the Centrelink demand?

    You should read the Centrelink demand carefully to ascertain under what statutory provision it has been issued. You should look at the precise wording of the relevant legislation. It may be that you will required by law to provide the information requested in which case you are permitted by ASCR 9.2 to disclose it without the need for you to obtain client instructions. However, it may also be that some or all of the information requested is the subject of legal professional privilege which is a substantive legal right owned by the client. The High Court of Australia has held that a statutory demand can only override the privilege if the relevant legislation specifically provides for that result. (Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) HCA 49)

    In the event that legal professional privilege applies, in the absence of specific instructions from your client to disclose, you should claim the privilege on his behalf and allow the matter to be decided by a court should Centrelink wish to pursue its demand for information.

    I act for an elderly lady who has lost capacity and lives in a nursing home. I made her last Will 5 years ago which I hold in safekeeping on her behalf. The executors named in the Will are my client’s son and daughter both of whom hold her power of attorney jointly and severally. The son has approached me and asked for a copy of his mother’s Will as he wishes to re-arrange his business affairs and his bank has asked him to provide it with evidence of any future inheritance from his mother’s estate. Can I provide him with a copy of his mother’s Will since he is one of her attorneys under power?

    No. Your client is the elderly lady and you must protect her confidentiality. Without her instructions (which she no longer has the capacity to give) you cannot accede to the son’s request.

    I have been acting for a father in a Children’s Court child protection case. The subject of the application is a 3 year old child presently in the care of his mother. The matter is in court today. After I arrived at court I was informed by the mother’s solicitor that when she woke up this morning the child was missing. The police are searching for the child. The judge has asked me if I have heard from my client and I told her that I had tried to call him on several occasions this morning, but his mobile phone appears to be switched off. The judge asked me if I have any idea as to my client’s whereabouts. I do not know for sure, but I suspect where he may be. What should I do?

    Whilst you owe a duty of confidentiality to your client, there are several permissive exceptions which will allow you to release client confidential information in certain circumstances if you consider it appropriate to do so. There are two exceptions which are relevant to your situation. These are where a solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence or a solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person. (ASCR 9.2) In the circumstances outlined, given the fears for the safety of the child, you should immediately disclose relevant information to the court or the police.

  • Client Documents Ownership

    I have been acting in a difficult and protracted deceased estate matter where the three executors are brothers. We are now in the course of realising assets to enable final distribution to the beneficiaries who include each of the executors, their mother, and their children. Two of the executors wish to sell an income producing suburban commercial property whereas the third executor wishes to retain ownership of the property by the estate as he believes it will greatly increase in capital value over the next two years. The third executor has sought independent legal advice and I have just received a written authority signed by him to forward a copy of my file to his solicitor including all file notes. What are my ethical obligations? 

    Each executor is a client entitled to receive a copy of all client documents on a solicitor’s file at his own expense. Client documents are defined as meaning “documents to which a client is entitled.” (ASCR Glossary of Terms) The original client documents on a solicitor’s file for joint clients can only be disposed of in a way authorised by all clients, in this instance, the three executors. The answer to the question of ownership of each of the various documents on a solicitor’s file for a particular client matter has been greatly informed by two Court of Appeal decisions – a 30 year old decision in New South Wales and a recent decision in Victoria reaffirming the earlier one. (Wentworth v De Montfort [1988] 15 NSWLR 348 and Champion v Rohrt [2016] 215)

    Can I charge my client for document storage or for retrieval of them from storage?

    Not without the prior written consent of your client. (ASCR 16).

  • Client Instructions

    A long-standing client has brought in his elderly mother to make a new Will. He is already her attorney under power. My client has two sisters one of whom has not seen her mother for several years. In order to assist me my client has typed out instructions for his mother’s new Will which he says he has discussed with his mother. The estranged daughter is not mentioned in the instructions although she was a beneficiary in the Will which the mother made with State Trustees 15 years earlier. My client’s mother seems to be frail and uses a walking frame. She lives with on-call assistance in a retirement village. At first glance she seems to have capacity. My client and his mother are presently in my waiting room. It appears that my client wishes to be his mother’s sole executor. Can I take instructions from my client’s mother and prepare her Will?

    A solicitor must follow a client’s lawful, proper, and competent instructions. (ASCR 8) With elderly clients this can be an area of potential difficulty and risk. You must interview the mother on her own and satisfy yourself that she has legal capacity to make a Will and you must ensure that she is not the subject of undue influence. You must satisfy yourself of the mother’s wishes and provide advice to her as appropriate in relation to the contents of the Will. There are detailed guidelines to assist solicitors in this area published by the Law Institute of Victoria and the Law Society of New South Wales. These helpful guidelines can be found on their respective websites and should be studied.

  • Conflict of Interest

    I acted for a married couple for over 15 years including preparing their Wills and buying and selling several pieces of real estate. It’s been about five years since I last heard from them. The wife has just called me for family law advice because of recent problems in their marriage. Can I give her the requested advice?

    No. During the course of acting for the married couple over 15 years you would have acquired client confidential information about each of them including “getting to know you factors.” There would be a real and sensible risk of all or some of that confidential information of the husband being used against his interests in the event of you advising the wife about her rights under family law legislation. You could only act for the wife if the husband gave informed consent for you to do so which would be highly unlikely. The wife and husband should each seek independent legal advice in the family law matter. (ASCR 10.2)

    I want to act for both a vendor and a purchaser in a straightforward conveyancing transaction – can I do so and where do I find the form?

    If you wish to act for more than one party with adverse interests in a transaction and there is a conflict or potential conflict of the duties to act in the best interests of each client you must not act unless you comply strictly with ACSR 11.3. This conduct rule provides that, subject to you discharging your duty to act in the best interests of each client, you may only act if each client is aware that you are also acting for another client and has given informed consent to you so acting. The current conduct rules (ASCRs) do not require that such informed consent be in writing, but it would be prudent best practice for you to do so before acting. There is no prescribed form. In the event of an actual conflict of interest arising, you should cease acting for all parties immediately.

    I have just been instructed to advise a business owner about some significant financial challenges which he is experiencing in his business. I recently held a meeting with my client and his accountant. At first blush it seemed to me that my client will not be able to refinance or trade out of his situation and that his best course would be to file for bankruptcy. However, I decided to review all his business accounts and unpaid invoices prior to me giving final legal advice. I was looking through these documents last night and discovered that a substantial amount of money is owing to a longstanding client of mine for whom I still act. What is my ethical position?

    You must cease acting for the business owner immediately and not give any legal advice at all. You should suggest that he obtain other legal advice. Since you owe the business owner him a duty of confidentiality, you cannot take any steps to advise your creditor client about the situation. If, at some stage in the future, your creditor client were to instruct you to advise or take some step in relation to the outstanding debt, you would have to decline those instructions citing ethical reasons without giving any detail.

    I took instructions to act for a client in a VOCAT claim in respect of serious personal injuries suffered by the client in an aggravated assault. It was only after the client had left my office that I realised that I had previously acted for the perpetrator of the assault two years ago in a successful TAC common law claim for damages in which he had received a settlement of $350,000. Can I continue to act for the VOCAT claimant since the perpetrator of the assault is now serving a term of six years imprisonment?

    No. You have a former client conflict of interest. One of the things you need to do in respect of the VOCAT claimant is to advise him regarding any possible civil damages claim he might have against the perpetrator of the assault. In this instance, you have confidential information about some property interests of the perpetrator of the assault which could be highly relevant in deciding whether or not the VOCAT claimant should pursue a damages claim. You cannot disclose or make use of the client confidential information for the benefit of a subsequent client.

    I act for an elderly lady whom I have known for many years. She has assets of about $5million and has asked me to prepare a new Will in which she wants to include a legacy of $25,000 for me in appreciation of my legal services to her over the years. What should I do?

    You should refer your client for independent legal advice regarding her new Will as you would otherwise be in breach of ASCR 12 which deals with conflicts concerning a solicitor’s own interests. In a case such as this there would be a presumption of undue influence which could be a ground for upsetting the Will. Of course, there is no obligation on you to accept such a bequest and you could thank your client for her kind thought, but say that you do not wish such a legacy to be left to you as you have always been adequately remunerated for your legal services.

    I am acting for a defendant in a Magistrates Court criminal prosecution in which my client has been charged with assault and robbery. The alleged offence took place at night in a dark alleyway. My client has denied the allegations made against him and has pleaded not guilty. I have just been informed that a key identity witness to be called by the prosecution is a man with a criminal record for whom I acted in a contested family law case four years ago. Can I continue to act in the current matter?

    No. There would be a former client conflict of interest since you would be obliged to cross-examine your former client as to credit which may well involve using confidential information including “getting to know you” factors. This would also raise duty of client loyalty and perception of justice issues conflict issues. You should cease acting for the defendant in the current matter.

    I act for a company in relation to a commercial dispute with one of its agents. My client provides educational services to domestic and international students who are sourced by agents with whom my client enters into agency agreements. Each agent is paid a commission based on the fees charged to the students that it recruits. Law firm A is acting for an agent in a dispute relating to the terms of the agency agreement between my client and the agent. Law firm A had previously acted for my client advising it about the terms of its agency arrangements. Is law firm A now conflicted in acting for the agent in this commercial dispute as it had previously acted for my client?

    Yes, law firm A is conflicted in acting in the present dispute and should cease acting for the agent. It is conflicted on the basis of the possible misuse of confidential information, a breach of the duty of loyalty owed to a client after the end of the retainer and the appearance of justice ground. (See LIV Ethics Committee Ruling R4916)

    My law firm shares offices with a firm of accountants who also provide financial planning advice to their clients. As and when legal documents need to be prepared the accountants refer their clients to my law firm to undertake that work. We are seeking to formalise our arrangement with them and the accountants have asked my firm to pay them a fixed $250 referral fee for each client referred to us. They do not want that commercial arrangement disclosed to the clients. What is our ethical position?

    You must make disclose to a client of any such commercial arrangement prior to accepting the client engagement. (ASCR 12.4.4) Preferably, you should make that disclosure in writing with written acknowledgement of its receipt by the client.

    For a period of three months several years ago I acted for a lady personally in a dispute regarding the abortive purchase of a residential property. The matter was resolved by voluntary mediation. A couple of years later the lady incorporated a sole shareholder/director financial investment company and estate agency A. I did not act for her. Recently A sued two companies X and Y for agent’s commission. By coincidence, I was instructed to act for X and Y in defending the proceedings. Through her current solicitors, my former client has demanded that I cease acting in the proceedings because I am conflicted. What should I do?

    A solicitor will be in a conflict situation regarding a former client if there is a real and sensible possibility that any client confidential  information from the previous engagement will now be used to the detriment of the former client in the current proceedings. (ASCR 10.2) It is well established from case law that “getting to know you factors” may constitute client confidential information. The test is an objective one and the person asserting the existence of a conflict must provide evidence to support it. In this case, it is unlikely that any confidential information obtained by you in the previous retainer for the client personally will have any relevance to the current dispute in which her company is the plaintiff, but it is fact dependent. You should ask A’s solicitors to set out for you in a detailed letter exactly what type of confidential information they assert is at risk in the current proceedings. You can then review the situation and seek ethics advice.  

    I was instructed to act for a six member partnership of accountants and financial advisors. Each of the partners has been sued by a group of several former clients alleging negligent investment advice which has caused them to suffer significant financial losses. The partners all deny that the alleged advice was given. I sought advice from Senior Counsel as to whether I could act for all six defendants. Following a conference with the partners the SC advised there was no conflict of interest in me acting as they all had a common interest. During the course of discovery a letter giving the alleged negligent advice to the clients and written by two of the partners has come to light. The two partners have said they cannot remember sending the letter. Am I conflicted in continuing to act in the matter?

    Yes. The initial advice given to you by Senior Counsel was correct at that time. All defendants had a common interest and were on the same page. It has now become apparent that the interests of two partners have diverged from the interests of the other four partners who may wish to pursue contribution proceedings. In these circumstances, you have found yourself in a concurrent conflict of interest situation. (ADCR 11.1) You should cease acting for all defendants immediately. Each of the two “groups” of partners will need to seek independent legal advice and representation.

    I am an associate in a law firm and acted for a lady in a difficult and stressful family law parenting and property settlement matter. I was able to achieve a very good result for my client in mediation and she was very grateful for my efforts on her behalf. At the conclusion of the matter my firm sent her an invoice for its outstanding legal fees and these were paid promptly. Two days later I received in the mail from my client a $5,000 cheque payable to me as a gift in gratitude for my legal efforts on her behalf and for supporting her. I told my principal who said it was a matter for my decision, but he had no objection to me banking the cheque. I am uncomfortable about it. What should I do?

    The solicitor-client relationship is a fiduciary one and a solicitor should not accept money from a client other than properly incurred legal fees. A solicitor has a fundamental ethical duty to avoid any compromise to their integrity and professional independence. (ASCR 4.1.4) In addition, a solicitor must not exercise any undue influence intended to dispose the client to benefit the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client. (ASCR 12.2) However, if the client engagement has ended, there would be no objection to a solicitor accepting from a client a modest gift by way of gratitude such as an inexpensive bottle of wine or a book or an ornament. In your case, you should return the $5,000 cheque to your client with a note thanking her, but explaining that you have an ethical duty to decline any such gift. 

  • Contracting with Third Parties

    I am acting for a company which has had $15,000 misappropriated by a former employee. My client has summarily dismissed the employee and has instructed me to write to her demanding repayment of the funds within 14 days failing which my client will report the matter to the police for investigation and prosecution. How should I respond to my client?

    A solicitor must not in any action or communication associated with representing a client threaten the institution of criminal proceedings against the other person if a civil liability to the solicitor’s client is not satisfied. (ASCR 34.1.2)

    The former Chief Justice of the Supreme Court of Queensland The Hon Paul De Jersey sitting as the President of the Civil and Administrative Tribunal wrote in a similar case:

    “(30) There is a continuum applicable to practitioners, with legitimate pressure at the one end, and improper intimidation at the other.  It may, in any particular case, be difficult to delineate the precise point at which any application of pressure becomes improper.  That is why practitioners must be extremely careful before resorting to any even arguably threatening conduct.  They are well advised to err on the side of caution, as in all aspects of their professional approach.  With the increasingly intense demands of clients, and the high level of competition which these days characterises the practice of the law, practitioners will inevitably be asked to stretch the limits of their consciences:  they must be steadfast not to yield to that temptation.”

    Legal Services Commissioner v Sing [2007] LPT 004

    Accordingly, you must inform your client of your ethical obligations and decline to follow the instructions. You can, of course, write to the former employee on behalf of your client seeking repayment of the misappropriated funds failing which civil proceedings for recovery will be commenced.

  • Inadvertent Disclosure of Confidential Documents

    I am acting for a wife in a full contested family law parenting and property matter. I am being assisted in the conduct of the matter by a trainee solicitor ‘James’. This morning James came into my office and told me that Counsels Brief for the other side had been delivered to our office last night (I was not in the office yesterday) and he had read it overnight including several Counsel Opinions and he wanted to discuss them with me. Can I quietly return the Brief to Counsel’s clerk’s office without reading any of it and remove James from any further contact with the file as I have done nothing wrong and I want to continue acting in the matter?

    No. Once the other side’s Brief to Counsel arrived in your office it triggered fundamental ethical obligations on your and James’ part. (ASCR 31). This conduct rule provides that a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor or by some other person and who is aware that the disclosure was inadvertent must not use the material. In addition, the conduct rule providers that the solicitor must return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent and notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material. The Full Bench of the High Court of Australia has made the ethical position of Australian solicitors very clear on this matter:

    65. “The position of solicitors who are in receipt of privileged documents has another dimension. Rule 31 of the Australian Solicitors’ Conduct Rules, which were adopted by the Law Council of Australia, deals with the duty of a solicitor to return material, which is known or reasonably suspected to be confidential, where a solicitor is aware that its disclosure was inadvertent. It involves notifying the other solicitor of the disclosures and returning that material. The rule has been adopted in Queensland and South Australia and the Law Society of New South Wales presently proposes to adopt it.

    66. Such a rule should not be necessary. In the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications. It permits a prompt return to the status quo and thereby avoids complications which may arise in the making of orders for the rectification of the mistake and the return of documents.

    67. This approach is important in a number of respects. One effect is that it promotes conduct which will assist the court to facilitate the overriding purposes of the CPA. It is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice.”

    Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46

    You must immediately notify both the barrister’s clerk and the instructing solicitor about what has occurred and advise that you have removed James from any further contact with the conduct of the file. You should offer the other side and possibly the court as well personal undertakings in writing by both you and James not to discuss the matter. It will then be up to the other side to decide whether they accept that proposal or intend to seek an injunction restraining your firm from continuing to act in the matter. Finally, you should give James some urgent intensive training in ethics.

    I am acting in a major property development for the owner of the project. Unknown to my client and me the lead financier had sought a confidential detailed report from a leading firm of accountants about the future viability of the project. The report was sent to the financier, but a personal assistant in the accountants’ office has sent me a copy of it by mistake. I have read the report which points out some serious future financial risk issues for my client. I do not know how the financier will respond to the report, but I want to inform my client of its contents in case the financier decides to withdraw support for the project. Can I do so?

    The same principles apply as in the previous scenario. You must follow the steps set out in ASCR 31 and the decision of the High Court in the Expense Reduction case. You should discuss the matter with the accountants and seek their permission to inform your client. If permission is refused, you will have to consider ceasing to act in the matter as you have an ethical duty to inform your client of any matter which is relevant to its interests and which comes to your knowledge. However, you cannot do so here because your knowledge comes from an inadvertent disclosure by a party with opposing interests.

  • Integrity of evidence

    I am acting for a defendant in a criminal prosecution for sexual assault offences. The 21 year old female complainant is a second cousin of my client. My client’s uncle recently met the complainant at a large family birthday party where she told him that she does not want to continue with the charges. My client has asked me to contact the complainant and speak with her about it. Can I do so?

    It is well established that there is no property in a witness. However, in sexual offence cases a defendant’s solicitor should never interview a complainant without prior notice to the prosecution. If the interview takes place, there should be an independent and credible witness present. There is always a risk that a defendant’s solicitor could be accused of interfering with the course of justice if the prosecution took the view that an attempt had been made to influence the evidence or wishes of the complainant. If the complainant wishes to not proceed with the charges against your client, she should seek independent legal advice. If you were to take any step in this regard, you may be charged with interfering with the course of justice. David Bowles, a Senior Ethics Solicitor with the Queensland Law Society, has published an excellent website article on this topic entitled: Can a defence lawyer undertake contact with complainants in criminal matters?

  • Liens

    I acted for an injured worker in a common law claim for damages. I carried out quite a lot of work. My client decided he wanted another solicitor to act for him and terminated my engagement. I handed over my file to the new solicitor without securing my costs of $12,500. I have just heard that my former client has settled his claim. Can I exercise a lien over the settlement funds to ensure my costs are paid?

    Provided that the legal work you undertook for your former played a part in the prosecution and success of his damages claim, you can exercise a particular or fruits of litigation lien over the funds held either by the defendant or its insurer or your former client’s new solicitor. Once they have notice of your lien, they would pay out the total funds to your client at their own risk if they failed to give effect to your lien.

  • Taking Advantage of Another’s Error

    You are acting for a vendor in a commercial property conveyancing transaction. When you receive the settlement adjustment statement from the purchaser’s solicitors you notice that an arithmetical error of $986 has been made in your client’s favour in one of the adjustments. Do you simply allow the matter to settle on that basis and reduce your fees to the client by $986 earning yourself goodwill with the client.

    No, certainly not. A solicitor must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact. (ASCR 30) In this instance, you should advise the purchaser’s solicitor that there appears to you to be an arithmetical error in the Statement of Adjustments and suggest that the document be reviewed by them and corrected.

  • Termination of Retainer

    My client is driving me insane. I am acting for him in a bitterly contested Federal Court of Australia commercial dispute involving several million dollars. The matter started 23 months ago. My client is an absolute control freak, and regularly ignores my advice and that of our senior and junior counsel. However, my client pays our interim accounts promptly and has never complained about their quantum. My client is so demanding that one of my senior associates has taken sick leave, and I’m feeling like doing the same. I don’t care about the fee income stream any more – I just want to terminate my client engagement. The trial is due to start in six months and little remains but trial preparation. What can I do?

    A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter and can only terminate the engagement for just cause and on reasonable notice. (ASCR 13.1.3) This conduct rule is based on the common law rule that a contract for legal services is usually deemed to be an entire contract as far as the solicitor is concerned. In other words, the solicitor is contractually bound to complete the matter even though the client can terminate the engagement unilaterally at any time. The two pre-conditions which enable a solicitor to terminate are just cause and reasonable notice. There is no statutory or regulatory definition of either of those terms. There are many judicial decisions where courts have had to apply them so these can provide a guide. If continued representation of the client is going to be injurious to the solicitor’s health, that can be just cause as is the complete breakdown of trust between the client and the solicitor. In this instance, it appears that you would have just cause, but it would be useful to confer with the client and try to persuade him that his own best interests would be much better served by retaining new solicitors. In this case, the requirement of reasonable notice would appear to be met as 6 months is long enough for new solicitors to come up to speed on the details of the case. An article summarising the law on this topic was published in the Law Institute Journal in Jan/Feb 2015 89 (1/2) LIJ, p. 42 entitled: The client from hell.

  • Undertakings

    I act for the vendor of a small business. There were a number of repairs to internal fittings requiring attention by my client prior to settlement. My client was dilatory in effecting the repairs so we agreed that $5,000 would be retained at settlement and held in the purchaser’s trust account pending my client effecting the repairs within 30 days of settlement. In a telephone conversation with me the purchaser’s solicitor undertook to pay the outstanding $5,000 upon the repairs being carried out. My client engaged a contractor to carry out the repairs as agreed and this was done within the 30 days. The purchaser has now instructed his solicitor not to pay me the $5,000 because of alleged poor workmanship. Can I enforce the undertaking?

    A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure its timely and effective performance unless released by the recipient or a court. (ASCR 6.1) Problems can and do arise when an undertaking is given orally and its terms are not clear or become the subject of dispute. An undertaking should always be given in writing in clear and unambiguous terms. In this instance, the purchaser may argue that it was an implied term of the undertaking that the repairs would be carried out in a proper and workmanlike manner. If so, who was going to be the judge of the quality of the work? In these circumstances it would appear to be best to try and negotiate an outcome acceptable to all parties. Your client may be able to force the contractor to rectify the work at his expense if it is indeed defective. If agreement cannot be reached, then only a court or tribunal will be able to resolve it.

    I was acting in a matter where my client had chosen to terminate my engagement. I received an authority signed by my client to hand over my file to the new solicitor. I exercised my lien over the file and sent my former client an Invoice for outstanding costs. I received a letter from the new solicitor which read: “On return of the documents I undertake to pay your costs and will be sending a courier to collect them at 3:00pm.” In reliance upon the undertaking I handed over the file. It is now eight months since I did so and my costs have not been paid because my former client disputes their quantum. Can I enforce the undertaking?

    Yes. More care should have been taken by the new solicitor in the wording of the undertaking if she wanted to limit its terms. In a tribunal decision on these facts it was held that the new solicitor had breached the undertaking. (Legal Services Commissioner v S (Legal Practice) [2010] VCAT 1124)

    The Tribunal Member wrote:

    “17 Strictly is there to emphasise the very serious nature of giving an undertaking. An undertaking is not something given lightly. It is a personal promise by a legal practitioner and it is a mechanism whereby practical courses of action can be taken based upon the reliance by one legal practitioner upon the undertaking of another that the contents of that undertaking will be observed, again I use the word with emphasis strictly. If there was not such a requirement there would be a breakdown in what is a very important mechanism employed by members of the legal profession. The breach of an undertaking strikes at the heart of such a system.”

    Does the word “undertaking” have to be used to make a solicitor’s promise in the course of legal practice enforceable?

    No. An undertaking is a promise by a solicitor to do something or refrain from doing something in the course of legal practice. It has been held in a tribunal decision that the word “undertaking” does not have to be used. (Legal Services Commissioner v K [2013] VCAT 1077 )

    The Tribunal Vice President wrote:

    “45. In the Tribunal’s view, Rule 22.1 does not require the use of any form of wording or indeed the use of the word ‘undertaking.’ However, it must be objectively clear from the form and meaning of words used and the context in which representations or assurances were made, that the intention was to give an undertaking by a solicitor upon which the recipient solicitor would rely.”

    I am a principal of a small law firm with five partners. In the course of a conveyancing transaction a junior employee solicitor of the firm undertook that our purchaser client would pay a penalty of $750 to the vendor for delaying settlement. The undertaking was given in a hurry to enable settlement to take place the next day and no instructions were sought from the client. The client has refused to make the payment. The junior solicitor did not seek authority from any of the partners to give the undertaking. Is our firm liable to make the payment?

    Yes. The firm is responsible for undertakings given by its employees unless the employee makes it clear at the time of giving the undertaking that it is being given on behalf of the employee personally and is not binding on the firm.  In its 2015 Ethics Guideline on Undertakings the Law Institute of Victoria has written:

    “Undertakings Given by Employees

    As a general rule, an undertaking given by an employee of a solicitor is deemed to be a personal undertaking by the solicitor unless the employee, if a solicitor, makes expressly clear that the undertaking is the employee solicitor’s personal undertaking and not that of the employer.  For this reason, many law firms will only allow undertakings to be given by a partner of the firm.”

    I am acting for a father in a contested parenting case involving two young children. There have been some issues in arranging for my client’s access to the children over a holiday period. In particular, the mother does not want the children to be staying in a house where my client and his new partner are residing. The mother’s solicitor has asked me to give an undertaking that that will not happen if the mother agrees to the access period requested. I cannot contact my client as he is presently working night shift. I don’t think he will object to the proposed condition sought by the mother. Can I give the undertaking requested by the mother’s solicitor?

    You cannot give an undertaking to do something which is entirely outside your control. The only thing you can do is to offer to seek instructions from your client to see if he is prepared to give such an undertaking himself as a condition of access. However, the mother and her solicitor may not be prepared to accept the father’s undertaking. If your client instructs you that he is prepared to give the undertaking, then you must ensure that you make it clear in writing to the mother’s solicitor that it is the undertaking of your client and not your undertaking. It would be prudent for you to obtain from your client clear and unambiguous instructions in writing as to what he is prepared to undertake

    I am at a settlement in the CBD acting for a vendor. I was supposed to bring an original Council Building Permit issued to the vendor with me to hand over to the purchaser’s solicitors at settlement. However, I overlooked bringing it and settlement is due in 10 minutes. It is sitting on my desk at my office in the suburbs. Can I give a personal undertaking to the purchaser’s solicitors to provide it to them within the next 24 hours?

    Yes, because that’s something entirely within your control. You are not reliant on any other party or person to allow you to comply with your undertaking.