Conduct and serviceWhat is an undertaking?This column has mentioned before the high proportion of complaints caused by undertakings that are either rashly given or carelessly worded, resulting in solicitors either failing to comply with them or wishing to avoid doing so.The usual reasons are either that an all-embracing undertaking has been given and the unfortunate practitioner then finds himself having to do something that was never contemplated when the undertaking was given (such as having to discharge a previously unknown second charge), or having to rely on a third party over whom he has no control in order to comply with his undertaking.In such instances the practitioner is usually perfectly aware that an undertaking has been given.

Nevertheless, cases do surface in which the solicitor seems to be unaware that he has given an undertaking at all.An undertaking is defined as: 'any unequivocal declaration of intent addressed to someone who reasonably places reliance on it and made by a solicitor or a member of a solicitor's staff in the course of practice, or a solicitor as a "solicitor", but not in the course of practice'.The wording is in principle 18.01 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition.

The crunch comes in note 2 to the principle.

This says an undertaking can be given orally and need not necessarily include the word 'undertake'.In one recent case, a solicitor wrote to a third party, who was not his client but was acting as a guarantor for his client, assuring her that 'we are in process of preparing a written statement of evidence we shall give to the court...

and we shall forward the same to you in due course'.

Not unnaturally, the third party then relied upon the solicitor to carry out this undertaking.

In the event, the solicitor failed to deliver and the third party complained.It was decided that the words the solicitor had used were sufficient to constitute an undertaking to the third party, upon which she relied.A breach of undertaking is a matter of unprofessional conduct, so the complaint could be made by someone who was not a client of the solicitor concerned.It is also worth remembering that undertakings are jointly and severally binding on all partners in the firm giving the undertaking.l Every case before the compliance and supervision committee is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.LawyerlineFacing a complaint? Need advice on how to handle it? Get in touch with Mike Frith at LAWYERLINE, the support service offered by the Office for the Supervision of Solicitors, tel: 0870 606 2588.