This Div is a JS Trigger

Standard

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.

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


Footnotes

  1. Cain v. Genereux (1981), 21 R.P.R. 156 (O.S.C.) (Lawyer found in contempt for failing to honour undertaking).
  2. 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 [1].
  3. 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.
  4. NSBS, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2017: rule 6.1-3 (c).
  5. 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.

Additional resources

Gillis, Deborah E., QC, “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: http://www.lians.ca/resources/real-estate/mortgage-payout-protocol.

Lawyers’ Insurance Association of Nova Scotia Risk Management Tools (Undertakings): http://www.lians.ca/resources/risk-and-practice-management/risk-management/undertakings

Practice notes

Steps to enforce an undertaking may include:

  1. Reminding the lawyer of the outstanding undertaking (link to letter resources);
  2. Making an application to discharge the mortgage or security interest on behalf of the current owner, in accordance with the Mortgage Payout Protocol;
  3. Applying to the court to enforce the undertaking; or
  4. 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:

  1. Whether the lawyer can fulfill the undertaking (see footnote 2 above); and
  2. Whether he or she should require the lawyer to provide a direct undertaking to the other lawyer.

Approved by Council on November 23, 2018.