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Satisfying Unfulfilled Undertakings and Trust Conditions

Pursuant to rule 7.2-11 of lawyers’ Rules of Professional Conduct and subrule 2.02(1) of the Paralegal Rules of Conduct, lawyers and paralegals must fulfill every undertaking given. The person who receives your undertaking is entitled to expect that you will honour it personally, unless the undertaking clearly indicated otherwise at the time that it was given [commentary to rule 7.2-11 of the lawyers' Rules; section 3 of Guideline 3 of the Paralegal Professional Conduct Guidelines]. Likewise, a trust condition, once accepted, is an obligation that a lawyer or paralegal must honour personally.

As a result, all undertakings or practice-related promises must be satisfied and all trust conditions must be honoured before you close your practice or transfer it to another lawyer or paralegal. If this is not be possible or practical, you must advise the client and the successor lawyer or paralegal, if any, of the nature of the undertaking, trust condition or obligation. In such a case, you must determine 

  • whether the successor lawyer or paralegal will honour your given undertaking, trust condition, or obligation
  • whether you must satisfy these, and/or
  • whether you may be relieved from strict compliance by the person to whom you gave the undertaking, trust condition or promise, or to whom you owe the obligation.

If you cannot honour a trust condition before closing or transferring your practice and the trust condition terms cannot be amended in writing on a mutually agreeable basis, the subject of the trust condition should be immediately returned to the person imposing the trust condition.

For a detailed checklist on fulfilling undertakings, trust conditions and other practice-related promises prior to the closure or transfer of your practice, consult the Outstanding Undertakings, Trust Conditions, Obligations, Reporting to the Client section of the Guide to Closing Your Practice for Lawyers or the Guide to Closing Your Practice for Paralegals.

Additional Resources:

Overview of Undertakings and Trust Conditions

Terms or Concepts Explained