Is there guidance on professional undertakings when working in-house?

“I'm a conveyancing solicitor about to start working with a property developer. Is there guidance on working in-house and providing undertakings?”

If you practise in-house, you will be held personally liable as a matter of conduct on a professional undertaking.

This applies regardless of whether you gave the undertaking as part of your job.

You should carefully consider the personal implications of giving an undertaking because of the possibility that your employer might become insolvent.

The employer's insolvency will not affect your personal responsibility for complying with an undertaking, unless you made it expressly clear it is not your intention to be personally bound by it.

You should also consider the professional indemnity position in the event of any future insolvency of your employer.

If you are the head of a legal department and a solicitor, you have primary liability for an undertaking given by the department. This applies whether the undertaking is given by an admitted or unadmitted staff member.

It is helpful to have a written policy on solicitors' undertakings that:

• clearly sets out the internal processes for giving undertakings
• names the persons or roles authorised to give them, and
• states who is responsible for ensuring any commitment made in an undertaking is met

Paragraph 3.5 of the Solicitors Regulation Authority's (SRA) Code of Conduct for Solicitors sets out your obligations:

"Where you supervise or manage others providing legal services:

• you remain accountable for the work carried out through them, and
• you effectively supervise work being done for clients"

Solicitors who are offered undertakings from legal departments should take care where the head of the department is an unadmitted person.

The SRA can only consider a complaint where an undertaking is given by a solicitor or a member of a solicitor's staff.

For more information, read our practice note on professional undertakings.