SRA Code of Conduct in Practice - Giving and accepting under...

Learning Outcomes

This article covers the SRA Code of Conduct rules on giving and accepting undertakings, including:

• The definition, elements and enforceability of undertakings (oral or written) and who is bound
• Personal versus firm liability, actual and ostensible authority, and the scope of responsibility
• When statements amount to undertakings and the dangers of ambiguity or informal wording
• Drafting clear, conditional, and time-bound undertakings that remain within your control
• When to refuse, qualify, or cap requests, including costs undertakings and funds-dependent promises
• Managing authority, record-keeping, and central registers to track performance and discharge
• Consequences of breach and enforcement routes: civil orders, contempt, SRA discipline, and compensation
• Escalation, remediation, and reporting in line with the SRA Enforcement Strategy and common SQE2 pitfalls
• Application of these principles across property, litigation, and funding contexts to realistic fact patterns

SQE2 Syllabus

For SQE2, you are required to understand the SRA Code of Conduct provisions on undertakings in practical scenarios, with a focus on the following syllabus points:

• The definition and nature of an undertaking under the SRA Code of Conduct
• Who can give and accept undertakings (including non-admitted staff) and who is bound
• When a statement amounts to an enforceable undertaking
• Personal and firm liability for undertakings (including scope of authority)
• The consequences of breaching an undertaking, including enforcement routes and SRA disciplinary action
• Best practice in giving, managing, and accepting undertakings
• How undertakings may arise and be tested in common practice settings (e.g., property transactions, litigation, funding)
• Common errors and exam traps regarding undertakings

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is an undertaking in the context of the SRA Code of Conduct? Does it have to be in writing?
2. True or false? An oral promise by a trainee solicitor can amount to a binding undertaking for the firm.
3. Who is liable if a solicitor gives an undertaking to pay funds by a specific date but cannot do so because their client fails to provide the funds?
4. What are the possible professional and legal consequences of breaching an undertaking?

Introduction

Undertakings are a routine—yet high-risk—feature of legal practice in England and Wales. At the SQE2 level, you must know how solicitors, and firms, are bound by undertakings under the SRA Code of Conduct, what makes a statement an undertaking, and the severe consequences of failing to perform undertakings. These rules reflect not just technical compliance, but are central to public trust in the legal profession.

The SRA Code of Conduct requires solicitors and firms to perform all undertakings given, whether orally or in writing. To do otherwise is to risk enforcement by courts and the SRA, personal liability, and damage to the client's case or commercial interests. Undertakings engage core Principles: upholding public trust (Principle 2), acting honestly (Principle 4), acting with integrity (Principle 5), and acting in the best interests of each client (Principle 7). In practice, courts also exercise a supervisory jurisdiction to enforce solicitors’ undertakings swiftly because they underpin the effective administration of justice.

Key Term: undertaking
An undertaking is a solicitor's (or firm’s) promise, given orally or in writing, to do or not do something (or cause something to be done), reasonably relied upon by another, and made in the course of legal practice. If breached, it can be enforced by the courts regardless of whether the word 'undertake' is used.

Key Term: personal liability
Personal liability means a solicitor is legally responsible for performing an undertaking, even where the solicitor had no control over the outcome (such as relying on the client or a third party).

Key Term: breach of undertaking
Any failure to comply with the terms of an undertaking, or delay beyond an agreed or reasonable time, whether intentional or not.

Importance of Undertakings

Undertakings enable transactions and litigation to proceed efficiently by allowing lawyers to rely on each other's promises. Because clients, courts, and third parties expect solicitors to keep their word, compliance with undertakings is fundamental to professional trust and integrity.

Failing to carry out an undertaking:

• Can directly affect outcomes for clients and third parties
• Immediately undermines public trust and confidence in the profession
• Frequently leads to legal and professional sanctions

Undertakings are commonly given in property transactions (for example, to discharge a mortgage on completion, send completion monies by a deadline, or deliver a registrable transfer), in litigation (for example, to file or serve documents by specific dates, or comply with court directions), and in funding arrangements (for example, to hold monies to order or apply funds for a stated purpose). However, the same principles apply in every area of practice.

When is a Statement an Undertaking?

An undertaking can arise in any area of practice. It does not require formal wording or to use the word 'undertake'. The test is substance—would a reasonable person rely on the statement as a promise by the solicitor (or firm) to act or refrain from acting?

Common examples of undertakings:

• Promising to pay money, discharge charges, or send documents by a certain date
• Assuring compliance with court orders
• Confirming to another solicitor, party, or the court that a specific act will be performed
• Agreeing to hold funds to order or to apply funds only for a specified purpose
• Undertaking to pay another party’s reasonable legal costs up to an agreed cap

Ambiguity is dangerous. If a statement can reasonably be read as a commitment, it may be construed as an undertaking and enforced accordingly. Vague commitments such as “we will aim to…” or “we expect to…” should be avoided or replaced with clear conditional wording if needed.

Key Term: scope of authority
The limits on a solicitor’s power to bind themselves or the firm to an undertaking. Lack of actual authority does not usually protect the solicitor from personal liability if they purport to give the undertaking.

Authority matters. You should never assume ostensible authority will suffice. Obtain express client authority and, where acting on behalf of the firm, comply with firm policy on who may give undertakings and in what form.

When does the Firm Become Bound?

If an undertaking is given by someone on the firm's behalf (including paralegals, trainees, non-admitted staff), and the recipient reasonably believes it to be binding, then both the individual and the firm may be liable.

Key considerations:

• Many firms restrict who can give undertakings.
• Only those with explicit authority should provide undertakings on behalf of the firm.
• The SRA Code of Conduct for Firms repeats the requirement regarding undertakings.
• Firms should maintain a central register of undertakings, with clear workflows to track, diarise, and verify performance.

Worked Example 1.1

A property solicitor, without checking with her firm or client, states in an email to the buyer's solicitor: "We will discharge the existing mortgage on completion."

Answer:
This is an undertaking. Both the individual solicitor and her firm are bound, even though she did not have authority from the firm or client to promise this. If the mortgage is not discharged, both are liable.

Enforcement and Consequences of Breach

Breaching an undertaking is treated extremely seriously.

Key Term: enforcement of undertaking
The right for a court or the SRA to compel the solicitor, and sometimes the firm, to perform an undertaking or compensate any loss arising from its breach.

The recipient has several routes if an undertaking is breached:

1. Civil enforcement: Courts can order the solicitor (and sometimes the firm) to perform the act, compensate for loss, or, in extreme cases, punish for contempt.
2. SRA discipline: All breaches are reportable and may result in disciplinary proceedings, sanctions, fines, suspension, or even being struck off.
3. Compensation claims: If loss results from breach, damages may be awarded.

Breaching an undertaking can also damage client relationships, disrupt transactions, and bring reputational harm to the firm.

Courts will enforce solicitors’ undertakings promptly. A failure or delay may lead to an order requiring performance and, where appropriate, costs against the solicitor personally. In egregious cases, contempt sanctions can follow. Regulatory action will focus on seriousness, harm, vulnerability of those affected, and whether the solicitor cooperated, remedied the breach, and reported it promptly. Under the Codes, serious breaches must be reported to the SRA; firms may route reports via the COLP to ensure consistent compliance.

Worked Example 1.2

A trainee orally assures opposing solicitors in litigation: “We will serve the disclosure list by Friday.” The list is not served until the following Tuesday.

Answer:
This is a binding undertaking, even though it was not in writing and the trainee lacked authority. The firm and the trainee are both accountable. The client could be prejudiced, and the breach may be reported to the SRA.

Best Practice and Avoiding Problems

Before giving an undertaking:

• Only give undertakings you are certain you or your firm can personally fulfill
• Confirm all terms in writing wherever possible
• Obtain client’s informed consent to promised acts
• Avoid giving undertakings on matters outside your control (such as a third party’s actions)
• Be precise and avoid ambiguity—unclear undertakings will be construed against the giver
• State explicit conditions where performance depends on factors outside your control (e.g., “subject to receipt of cleared funds”)
• Set a realistic timescale; if none is agreed, performance must occur within a reasonable time
• If agreeing to pay costs, limit the undertaking to “proper and reasonable costs” and set a cap, payable only upon receipt of funds

Solicitors should keep a central record of all undertakings given and ensure compliance is monitored. Good file management includes placing undertakings on the face of the file, diarising deadlines, recording any conditions, and noting proof of discharge.

If circumstances change unexpectedly, you cannot unilaterally withdraw or vary the undertaking. Seek the recipient’s agreement to any variation or, if necessary, apply to the court. Until varied or released, you must perform.

Common practice-specific risks:

• Property: Undertakings to discharge mortgages, deliver registrable documents, or pay completion monies must be drafted with care. Check redemption figures and available sale proceeds; do not promise beyond the net funds.
• Litigation: Undertakings to serve or file by fixed dates should be backed by internal workflows to ensure timely compliance. If deadlines are at risk, seek extensions before they expire and avoid commitments contingent on client conduct unless expressly conditional.

Exam Warning

In SQE2, avoid assuming that a solicitor can avoid liability for an undertaking because the client provided no funds or because circumstances have changed—these are not accepted legal excuses. Undertakings must be performed regardless.

Worked Example 1.3

A litigation solicitor promises to send a court-ordered payment by Friday, conditional on the arrival of client funds, but fails to mention the condition in communications to the other side.

Answer:
The solicitor's statement is an unconditional undertaking. Personal liability arises if the funds do not arrive and the payment is not made. The solicitor cannot use non-receipt of client funds as a defence in enforcement proceedings.

Worked Example 1.4

A landlord’s solicitor requests an undertaking from the tenant’s solicitor to pay “the landlord’s legal costs in full” for drafting and completing a new lease, before issuing documents.

Answer:
Do not give a blanket costs undertaking. If appropriate, agree a written undertaking limited to “proper and reasonable costs” with a clear monetary cap, payable only on receipt of cleared client funds and after invoice and breakdown are received. If the landlord refuses a cap or reasonable qualifiers, refuse the undertaking and propose alternative process (e.g., funds on account held to order).

Worked Example 1.5

A conveyancer emails: “We will aim to transfer completion monies by 4pm tomorrow.” The buyer’s solicitor relies on this and arranges removals. Funds do not arrive until the following day.

Answer:
Ambiguous wording is risky. In context, a court may treat this as an undertaking if a reasonable recipient would rely on it as a commitment tied to completion. Ambiguities are construed against the giver. Use precise wording or state explicit conditions to avoid creating enforceable promises inadvertently.

Worked Example 1.6

After exchange, a seller’s solicitor realises the net proceeds will be insufficient to discharge all charges, but has already undertaken to “discharge all existing charges on completion.” The solicitor seeks to withdraw the undertaking.

Answer:
Undertakings cannot be unilaterally withdrawn. The solicitor must perform or obtain the recipient’s agreement to vary/release the undertaking, or seek the court’s intervention. The correct approach is to contact the recipient promptly, propose a variation (e.g., discharge specified charges, with a plan for shortfall), and, if refused, apply to court. Regulatory reporting may be required.

Advising Clients and Other Staff

Part of the solicitor’s duty is to warn clients of the consequences if an undertaking is breached and to instruct staff clearly on who may give undertakings. Firms should:

• Adopt and circulate an undertakings policy setting out who may give undertakings and in what terms
• Train all fee earners and support staff to recognise requests that may amount to undertakings and to escalate appropriately
• Maintain a central register, with regular audit by managers/Compliance Officers
• Embed checks (for example, dual sign-off for non-routine undertakings, funds verification steps before costs undertakings)
• Ensure undertakings are recorded, diarised, and evidenced when performed (e.g., redemption statement receipts, HM Land Registry confirmations)

If a breach occurs, take remedial action immediately: notify the recipient, perform the undertaking as soon as possible, compensate any loss where appropriate, and consider whether to report to the SRA in line with the Enforcement Strategy and Para 7.7 of the Code. Cooperation, honesty and prompt remediation will be treated as mitigating factors.

Revision Tip

If you are unsure if a statement amounts to an undertaking, ask: “Would a recipient reasonably believe they could safely rely on the promise and suffer loss if it was not kept?” If yes, it is almost certainly an undertaking.

Key Point Checklist

This article has covered the following key knowledge points:

• An undertaking is a binding promise by a solicitor or firm to do or not do something, whether given in writing or orally.
• Undertakings may be enforced by the courts or through SRA disciplinary action.
• Both individual solicitors and their firms can be liable for undertakings, including those given by non-admitted staff.
• Liability to perform an undertaking is personal—it cannot be avoided due to lack of funds, mistake, or changes in circumstance.
• Best practice requires only giving undertakings that are within your personal control, accurately recording them, and ensuring compliance.
• Breach of an undertaking almost always results in disciplinary action and may result in personal liability for compensation or a wasted costs order.
• Ambiguous statements can be construed as undertakings; precise, conditional drafting is essential.
• Costs undertakings should be limited (proper and reasonable costs, with a cap) and conditioned on receipt of funds and an itemised invoice.
• Undertakings cannot be withdrawn or varied unilaterally; obtain the recipient’s agreement or apply to the court.
• Serious breaches should be remedied promptly and may need to be reported to the SRA; firms should maintain a central undertakings register and robust supervision.

Key Terms and Concepts

• undertaking
• personal liability
• breach of undertaking
• scope of authority
• enforcement of undertaking