By Harold Ayodo
Some property transactions turn sour after lawyers fail to fulfil promises made on behalf of clients.
For instance, a client purchasing a house worth Sh10 million may pay deposit of Sh2 million and his or her advocate promises when the balance would be cleared.
Such promises between lawyers representing the buyer and seller are known as professional undertakings and are often given by conveyance lawyers on behalf of clients in the hope that they would be kept.
However, there have been reported cases of breach of such undertakings mainly due to missteps by either the lawyer or client.
In most cases, lawyers are victims when professional undertakings are not honoured and are forced to make the payments out of their pockets.
Misconduct
For property lawyers, failure to honour undertakings does not only lead to them burning their fingers, but also amounts to professional misconduct. This can lead to a disciplinary action against the lawyer should the client lodge a complaint.
Where an advocate, in partnership, gives an undertaking in the course of his or her practice, all the partners are responsible for its performance. A partner will also remain responsible for the undertakings of the firm even after he or she leaves the law firm or the partnership is dissolved.
However, no liability can be attached to an advocate who becomes a partner in a law firm after an undertaking was given.
According to advocates disciplinary committee member Gladys Wamaitha, judicial precedence (past judgments) are proof of consequences of breaching legal promises.
Wamaitha, who recently spoke at a continuous legal education seminar in Eldoret, said that failure to honour an undertaking is an express professional misconduct.
She referred to the case of KCB vs Adala (1983) KLR 467 in which the High Court upheld that it had jurisdiction over an advocate for breach of an undertaking.
Wamaitha says that courts have powers to take punitive and disciplinary measures to prevent a breach of duty by an officer of the court (a lawyer).
In daily legal practice, professional undertakings may be given orally or in writing, but need not necessarily include the word ‘undertake’. The legal promises are frequently given by lawyers to mainly fast-track property transactions.
Ethics
According to Wamaitha, practising lawyers are obligated by the ethics of the profession to honour professional undertakings, even without legal contracts.
She explained that conveyance lawyers may be subject to professional obligations even without making legal promises. For instance, if a person sends documents or money to an advocate subject to an express condition, the lawyer is subject to a professional obligation to return the documents or money if unwilling or unable to comply with the conditions. If documents or money are sent to a lawyer on condition that they should be held to the sender’s order, the advocate has a professional obligation to return the documents or money to the sender on demand.
Binding undertaking
In her legal research paper titled, Professional Undertakings, Wamaitha refers to the case of Radier vs Njogu & Co. Advocates (2006) KLR where the court observed that an undertaking given by an advocate is personally binding on him and failure to honour such an undertaking is evidence of professional misconduct.
On the flipside, lawyers have no obligations to either give or accept an undertaking, although there is a duty to act in a client’s best interest, which does not imply a duty to assume or underwrite a client’s financial or other obligations.
According to Wamaitha, advocates should consider whether they would be able to implement professional undertakings before pledging. They should also have regard to all eventualities, which might affect their ability to perform the undertaking.
