The Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct (June 2016) draft define an undertaking as a formal promise whose effect is to make the person giving it responsible for the fulfilment of the obligations in respect to which it is given.
An Advocate’s undertaking is not only a personal promise but also a professional and legal obligation. It is based on the concept of the legal professional as an honourable profession and the expectation that an honourable person will honour his/her word.
In legal practice professional undertakings are a standard method of mediating transactions. Without such undertakings there would be much difficulty and inconvenience suffered by clients. This is because the effectiveness of undertakings given by the Advocates greatly depends on the confidence and belief that a party has that reliance can be placed on the undertaking.
As a result, the Advocate’s failure to honour the undertaking undermines such confidence and is detrimental to the client’s interests. Moreover, a breach of a professional undertaking adversely affects the Advocate’s reputation as well as the reputation and trustworthiness of the legal profession as a whole and potentially can jeopardise legal transactions.
The Advocates (Professional Conduct) Regulations underscore the importance of undertakings by stating that an advocate shall not:
- give any undertaking to another advocate or any other person knowing that he or she has no authority or means of satisfying the undertaking; and
- knowingly breach the terms of an undertaking
For Example;
In practice, professional undertakings are mostly used in commercial and real estate/conveyancing transactions where the Purchaser releases the balance of the purchase price to their advocate pending completion of the Vendor’s obligations / duties. The advocate acting for the Purchaser is supposed to ‘hold’ the money in a client account.
The advocate therefore plays the role of a trustworthy middleman and will only release it upon receipt of the completion documents form the Vendor’s advocates and successful registration of the Conveyance in favour of the Purchaser.
Rationale
Having understood that, then the rationale for the rule is to enforce public confidence in the legal profession in that an advocate can be trusted to keep their word; contrary to which, their reputation as well as that of the whole legal fraternity is put to question not to mention the fact that their client’s interests are jeopardized.
Authors:
Ms. Faith Gituma, a Legal Assistant/Trainee with the Firm and Mr. Mr. K. Njoroge Ng’ang’a, Partner and Head of the Corporate Commercial and Real Estate Department.
This note does not constitute legal advice neither is it a Legal Opinion. For more information on professional undertakings or any further queries on commercial or real estate matters, email us on info@kn-partners.com or telephone us on +254 20 2000431/+254717554430