NON-DISCRIMINATION
You are obliged to avoid any form of unjust discrimination that might influence your professional interactions and the manner in which you deliver your services.
A breach of this standard would occur if a legal firm explicitly stated on its website that it only represented clients in heterosexual relationships.
Furthermore, legal firms are mandated to systematically monitor, report, and disclose workforce diversity data, in accordance with the guidelines set by the SRA.
1.1 Accommodations for Disabled Clients or Employees
Accommodations for Disabled Clients and Employees
It is your legal duty to implement suitable adjustments to ensure that disabled clients and employees are not significantly disadvantaged in comparison to non-disabled individuals.
Importantly, you must not transfer the costs of these adjustments to other parties.
It is critical to understand that these adjustments are required to be 'reasonable,' implying that a firm is not obligated to meet the needs of disabled clients and employees in every instance. For instance, if the cost of making such adjustments is excessively high, they may not be required.
Examples of reasonable adjustments might include:
Facilitating easy access to the firm's premises for clients.
Offering sign language interpretation services.
Providing specialised equipment for employees with disabilities.
AVOIDANCE OF ABUSE OF POSITION
You are strictly prohibited from abusing your professional position to gain unfair advantage over clients or any other individuals.
HONESTY TOWARD ALL PARTIES
You have an absolute obligation to avoid misleading or attempting to mislead your clients, the court, or any other parties. This obligation can be breached not only through direct actions but also through failures to act, or by being complicit in the actions or inactions of others (including your clients).
In situations where the opposing party does not have legal representation, which is becoming increasingly common, it is essential for the solicitor to exercise extra caution to ensure that the unrepresented party is not misled.
FULFILLING UNDERTAKINGS
It is incumbent upon you to fulfil all commitments (undertakings) you have made within the stipulated time frame. In cases where no specific timescale is agreed upon, these undertakings must be completed within a timeframe that is considered reasonable.
Similarly, legal firms bear the responsibility to ensure that all undertakings made by any member of the firm, including support staff, are duly fulfilled.
4.1 Definition of an Undertaking
An undertaking is characterised as:
A declaration, either spoken or written, which may or may not explicitly use the term ‘undertaking’.
Made to a party who reasonably relies on it.
A commitment that you or a third party will take certain actions, initiate specific proceedings, or abstain from certain activities. It’s important to note that while a solicitor or firm is not obligated to provide an undertaking, once given, it must be adhered to.
Typical Examples of Undertakings:
Securing title deeds from a lender to facilitate the sale of a property with an unregistered title at the land registry.
Committing to pay the legal fees of the opposing solicitor. (Important: For the protection of the solicitor issuing the undertaking, it's advisable to have those fees already cleared in the client account when the undertaking is given. However, this is not a requirement for the validity of the undertaking, which remains binding regardless of the solicitor’s current funds.)
Agreeing to settle a mortgage from the proceeds of a property sale.
4.2 Recommended Practices for Undertakings
For best practice, an undertaking should ideally be:
Issued by a solicitor.
Provided in written form.
Explicitly intended as an undertaking (for example, by starting with ‘I undertake…’).
Authorised explicitly by the client.
Documented in the client’s file and in a central register of undertakings within the firm.
Unambiguous in its terms—remember, any unclear undertaking will be interpreted against the giver.
Therefore, a regulated person or firm should:
Clearly define who is authorised to give undertakings.
Establish prescribed methods for issuing undertakings.
Where feasible, use standard undertaking forms with strict guidelines for any deviations, subject to supervisory and management approval.
Implement a system for having another fee earner review the terms.
Make sure all staff understand the necessity of client agreement for undertakings.
Ensure all staff are aware of the specific undertakings involved in land sale or purchase contracts and the requirements for completing such transactions.
Clearly outline the process for monitoring compliance, maintaining a central record for oversight.
Attach a copy of each undertaking to the relevant client file and clearly label the file.
Follow up oral undertakings (given or received) with written confirmation.
4.3 Common Pitfalls in Undertakings
Regrettably, undertakings can often be:
Issued by any staff member in a legal firm.
Communicated orally, often over the telephone.
Given inadvertently, as the explicit use of the word ‘undertaking’ is not necessary.
4.4 Undertakings Based on Future Events
In cases where an undertaking is contingent upon a future event, and it becomes evident that this event will not transpire, you have a responsibility to promptly inform the recipient of the undertaking about this change in circumstances.
4.5 Recording Undertakings
Adhering to best practices, a legal firm is expected to maintain a robust system that keeps track of undertakings given and their subsequent fulfilment.
4.6 Implications of Failing to Honour an Undertaking
A solicitor is personally obligated to honour an undertaking, regardless of whether it was issued verbally or in written form.
An undertaking is enforceable through the courts. The recipient of the undertaking has the right to seek reparation for any losses suffered due to its non-fulfillment.
While bodies such as the SRA, LeO, and SDT do not possess the authority to enforce an undertaking directly, any failure to comply may constitute a breach of professional conduct, potentially resulting in disciplinary actions against the solicitor.
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