A lawyer who has given an undertaking must personally fulfil that undertaking in a timely manner.1 A lawyer must not give an undertaking which the lawyer cannot fulfill.2 Undertakings should be unambiguous and reduced to writing.3 A lawyer who permits a non-lawyer to give an undertaking on the lawyer’s behalf must do so in accordance with the Code of Professional Conduct.4
A lawyer who undertakes to record the release of a mortgage or to cancel a security interest, must take steps to ensure the removal of the security interest from the registry or parcel register in a timely manner. A lawyer who pays out, or causes to be paid out, in full or in part, a mortgage recorded in a parcel register must be aware of and comply with the Mortgage Payout Protocol5.
A lawyer must not accept an undertaking that he or she knows or ought to know cannot be fulfilled by the lawyer giving the undertaking. A lawyer who accepts an undertaking should follow-up on undertakings in a timely manner. A lawyer who accepts a non-lawyer’s undertaking or who permits a non-lawyer to accept an undertaking must do so in accordance with the Code of Professional Conduct.4
- Cain v. Genereux (1981), 21 R.P.R. 156 (O.S.C.) (Lawyer found in contempt for failing to honour undertaking).
- The words “on behalf of my client” or “on behalf of the vendor” do not relieve the lawyer of personal responsibility: NSBS, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2017: Chapter 7 “Relationship to the Society and Other Lawyers” and rule 7.2-11 “Undertakings and Trust Conditions”, Commentary .
- NSBS, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012: Chapter 7 “Relationship to the Society and Other Lawyers” and rule 7.2-11 “Undertakings and Trust Conditions” and Commentary. NSBS Legal Ethics Handbook Chapter 13 “Duties to Other Lawyers” and sections 13.6 and 13.16 and Note 8.
- NSBS, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2017: rule 6.1-3 (c).
- Mortgage Payout Protocol: Land Registration Act, S.N.S. 2001, c. 6, s. 60; Land Registration Act Administration Regulations, S.N.S. 2001, c.6, s. 28; and Legal Profession Act Regulations, S.N.S. 2005, c. 28, s. 8.2.4 – 8.2.8. See also Real Estate Practice Standard 3.4: Discharge of Mortgages.
Gillis, Deborah E., KC, “Elevating Undertakings to the Top Floor”, RELANS Conference 2006, February 2, 2006
Gordon, Garth, “Solicitor’s Undertakings – An Outline”, Continuing Legal Education Conference 1987, April 11, 1987
Lawyers’ Insurance Association of Nova Scotia: Mortgage Payout Protocol
Lawyers’ Insurance Association of Nova Scotia: Risk Management Tools – Undertakings
Steps to enforce an undertaking may include:
- Reminding the lawyer of the outstanding undertaking (link to letter resources);
- Making an application to discharge the mortgage or security interest on behalf of the current owner, in accordance with the Mortgage Payout Protocol;
- Applying to the court to enforce the undertaking; or
- Reporting the refusal to complete the undertaking in a timely manner to the Nova Scotia Barrister’s Society or the Lawyers’ Insurance Association of Nova Scotia.
A lawyer who considers giving an undertaking based on another lawyer’s undertaking should consider:
- Whether the lawyer can fulfill the undertaking (see footnote 2 above); and
- Whether he or she should require the lawyer to provide a direct undertaking to the other lawyer.
Approved by Council on November 23, 2018.