The Singapore Law Gazette

Back to Basics: Undertakings

“What you do have is my word. And it’s stronger than oak”
Jerry Maguire (1996)

In a recent disciplinary case,¹Law Society of Singapore v Ezekiel Peter Latimer (“Ezekiel Peter Latimer”) (2024) SGHC 90. the Court of Three Judges reminded lawyers of the fundamental principles underlying the giving of a solicitor’s undertaking. This article summarises these principles and highlights the ramifications of furnishing a solicitor’s undertaking.

The Case

A solicitor asked his client whether she would be interested in becoming a director of a company but did not disclose that the company was involved in ongoing court proceedings. As the client remained uninformed of the court orders issued in relation to those proceedings, she was consequently found guilty of contempt, fined $25,000, and ordered to hand her passport to the Court for impoundment pending full settlement of the fine.

The solicitor filed an appeal on the client’s behalf against the order. He gave a personal undertaking to the Court, under which he agreed to stand as surety for the sum of $25,000 in order to secure the release of the client’s passport. While the Court of Three Judges did not see any potential conflict of interests arising solely from the solicitor’s personal undertaking, it stated that the solicitor’s decision to provide the personal undertaking was “unwise” as he had done so without first discussing the implications with the client.²Ezekiel Peter Latimer at (29) and (31). Observing that there was no real urgency for the solicitor to give the undertaking, the Court of Three Judges took the opportunity to revisit the fundamental principles underlying the giving of a solicitor’s undertaking.

Fundamental Principles

What is a Solicitor’s Undertaking?

An undertaking given by a solicitor is “a sui generis bond which is akin to a guarantee and practically equivalent to a sacred vow”.³Ezekiel Peter Latimer at (32). In an earlier unrelated disciplinary case, a solicitor’s undertaking has been described as “a solemn promise that is not merely an agreement or a contract”.⁴Law Society of Singapore v. Naidu Priyalatha (“Naidu Priyalatha”) (2023) 3 SLR 1401 at (31).

Who Can a Solicitor’s Undertaking be Given to?

A solicitor’s undertaking can be given to the Court, other legal practitioners or members of the public.⁵Ezekiel Peter Latimer at (32). Solicitors should be mindful that the Legal Profession (Professional Conduct) Rules 2015 (PCR) identifies two main groups to whom an undertaking may be provided:

1. another legal practitioner;⁶See rules 7(6) and 7(7) of the PCR. and
2. a court or tribunal.⁷See rules 13(4) and 13(5) of the PCR.

Under the PCR, legal practitioners must honour undertakings given to another legal practitioner or a court or tribunal. They must not give undertakings to another legal practitioner or a court or tribunal unless they believe that the undertaking is necessary and they know they are able to honour the undertaking when giving it.

What is the Effect of Giving a Solicitor’s Undertaking?

A party to whom a solicitor’s undertaking is given can “assume that, once given, it will be scrupulously performed”.⁸Ezekiel Peter Latimer (at (32). This is because an undertaking given by a member of the legal profession is accorded a “unique status”, which “allows the average person and even the court to rely on it without question”.⁹Naidu Priyalatha at (32). Hence, a solicitor is accountable for breaching his or her undertaking, “which includes both legal repercussions and possible disciplinary action”.¹⁰Ezekiel Peter Latimer at (32), citing Naidu Priyalatha at (32).

Should Solicitors be Careful in Giving Undertakings?

Yes, the Court of Three Judges observed that “solicitors would be well-advised to avoid giving an undertaking in relation to a matter that lies beyond their control” and “should typically only give an undertaking with which he or she is able to comply”.¹¹Ezekiel Peter Latimer at (32), citing Naidu Priyalatha at (32). Solicitors should carefully consider “all eventualities which might affect the solicitor’s ability to perform the undertaking” before giving it.¹²Ezekiel Peter Latimer at (33).

Should Solicitors Give Undertakings Regarding Matters That are Beyond Their Control?

This is a highly risky practice. As the Court of Three Judges noted, a solicitor who provides an undertaking regarding matters beyond his or her control, for example, an undertaking concerning a third party’s conduct, does so at his or her “own peril”.¹³Ezekiel Peter Latimer at (33). This is because the nature of the undertaking is not affected by the fact that the solicitor has no control over the actions relating to the undertaking. Thus, even if such actions are done by a third party, the solicitor remains liable to disciplinary action if the undertaking is breached. Solicitors must therefore always be mindful of the “weighty implications” that the giving of an undertaking entails.¹⁴Ezekiel Peter Latimer at (33).

Can a Solicitor Give an Undertaking to Pay a Sum of Money Upon the Happening of an Event?

As a matter of prudence, an undertaking to pay a sum of money upon the happening of an event should only be given “on the basis that the relevant funds have been made available to the solicitors”.¹⁵Ezekiel Peter Latimer at (33).

Final Takeaways

Solicitors should take heed of the guidance given by the Court of Three Judges in this case. In addition, they ought to bear in mind that once an undertaking is given, “there is no turning back”¹⁶Naidu Priyalatha at (32). The courts take a serious view of breaches of solicitors’ undertakings as otherwise they “would severely erode the trust one can place on a solicitor’s undertaking and fundamentally change the way modern legal business and dispute resolution is conducted”.¹⁷Naidu Priyalatha at (32). Deliberate breaches of a solicitor’s undertaking must be avoided at all costs, as they would usually give rise to “prima facie cause of sufficient gravity for disciplinary action”.¹⁸Naidu Priyalatha at (40). Drawing from the courts’ guidance, solicitors should always bear in mind two maxims to guide their conduct in this area: (1) Do your utmost to abide by the undertakings that you give; and (2) If you have any doubt about your ability to do so, do not give an undertaking.¹⁹Naidu Priyalatha at (40).

Further Law Society Resources on Undertakings

• Alvin Chen, “The Importance of Communicating Effectively with Your Client”, Singapore Law Gazette (December 2022)
• Alvin Chen and Stella Chen, “Beware of Vague Drafting!”, Singapore Law Gazette (October 2018)