OTLA - NLD Spring Conference
Time: 12:30pm Location: Metro Toronto Convention CentreThu Jun 7, 2012
Robert Durante will be presenting at the OTLA - NLD Spring Conference on June 7, 2012 at 12:30p.m. at the Metro Toronto Convention Centre. The luncheon will focus on Undertakings – Fulfillment, Good Faith and Civility.
Overview:
The undertaking is an obligation made by a lawyer to fulfill a request made on behalf of his/her client or him/herself. This promise must be observed or a lawyer may risk civil, disciplinary, cost or even penal consequences. The concept of implied undertaking”, as it was known at common law, has now been codified in the Rules of Civil Procedure as the deemed undertaking. Therefore a lawyer must be prudent in their acceptance of a request and be clear to what exactly is requested in order to properly fulfill said deemed undertaking.
An undertaking is a tool which a lawyer uses in the course of the practice of law. If used properly, undertakings demonstrate the integrity which is the foundation of our profession. Undertakings can create a framework to enable transactions or procedures to move forward when they might otherwise be stalled. An undertaking permits a lawyer’s solemn promise to perform, to temporarily take the place of a document, information, signature or payment or other act or performance which enables persons or parties to a transaction or lawsuit to move forward.
A lawyer who gives an undertaking must have as his/her goal the successful completion of the deal for the benefit of the clients, or the fulfillment of procedures which will lead to a just outcome between the parties. A lawyer should not give an undertaking without understanding the practical and ethical considerations which are attached to it. A lawyer must fulfill undertakings in good faith and to the best of their abilities in order to facilitate the promise requested. A lawyer should, in order to facilitate forward progression of a claim, make every effort to provide necessary information upon the request of the opposing counsel. The lawyer shall document all requests made to fulfill an undertaking. A lawyer in the process of hearing a request, be civil and respectful to the opposing counsel's request in order to facilitate the best interests of the claim and in the principle of dispute resolution.
Delay, not fulfilling and refusal of requests and/or undertakings do not respect the administration of justice; and a lawyer, as an officer of the court, must make all efforts to do his/her utmost to encourage this principle. Attempts to subvert requests and undertakings only delays the forward progression of a claim; it does not support good faith and civility to the parties involved in the claim nor to the courts interests. A proper adherence to the rules of civil procedure and practice guidelines will allow a lawyer the opportunity to serve the needs of their client as well as their practice and/or firm and/or corporation/company.
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