1. This is an application brought by the Legal Services Commissioner concerning Mr Clem D'Alessandro, a legal practitioner. At the outset I note that the documentation has the spelling of Mr D'Alessandro's name with two _l_s and it appears that the correct spelling is with one. I shall order that the necessary amendment be made to the Tribunal's records.
2. The background is that Mr D'Alessandro was acting on behalf of a person who was in dispute with her former de facto husband in relation to the division of property. It appears that the substance of the property was a piece of real estate registered in the name of Mr D'Alessandro's client and that this had been subject to a contract of sale and that the former de facto husband had a caveat registered over the property. The situation was that settlement of the sale was imminent and that a withdrawal of caveat was required. Correspondence was entered into between Mr D'Alessandro's firm and the firm of Simon Parsons & Co, the solicitors acting on behalf of the husband. In the course of the correspondence an undertaking was given by Mr D'Alessandro to hold the net proceeds of the sale in trust pending the resolution of the property dispute between their respective clients. Following further correspondence the undertaking was varied to one of investing the net proceeds in a joint interest bearing deposit. That undertaking was given on 24 October 2006, in a letter addressed to Simon Parsons & Co, omitting formal parts as follows:

We refer to previous correspondence and to our telephone conversation with Ms Tang earlier this morning. We are hereby undertaking to hold the net proceeds from the sale of the property in a joint interest bearing trust account pending resolution of the matter.

1. What followed was some further correspondence. Firstly, it became obvious that in order to invest the funds in an account in the joint names of the client and the husband it was necessary to obtain the husband's tax file number. This was given to Mr D'Alessandro's firm on 22 November 2006.
2. On 24 November 2006 Mr D'Alessandro wrote to Simon Parsons & Co and advised the funds would not be invested and that there would be a disbursement of funds to Mr D'Alessandro's client on 12 December unless one of three alternatives set out in a letter which had previously been sent on 21 November was met. Those alternatives essentially were that either the husband release funds, initiate court proceedings or provide a bank cheque for one half of the debts which had been identified in the letter of 21 November. In response Simon Parsons & Co sent a letter dated 27 November saying that there was to be no release from the undertaking. It is admitted that the funds were never invested in a joint interest bearing account. The funds were placed in Mr D'Alessandro's firm's trust account. However on 8 January 2007 the sum of $10,000 was disbursed to the client. On 1 June 2007 the sum of $950.00 was disbursed to a firm of solicitors to whom Mr D'Alessandro's client owed that sum. On 8 June 2007 the sum of $2,500.00 was disbursed to another third party to whom the client was indebted. On a date not known to the Tribunal the sum of $4,157.23 was appropriated in relation to legal fees and on 2 August 2007 the sum of $4,120.97 was disbursed to Mr D'Alessandro's client.
3. It appears to be common ground that there was no correspondence between Mr D'Alessandro's firm and Simon Parsons & Co during the period of disbursement of the funds. It has been submitted on behalf of the Legal Services Commissioner that there was no attempt to obtain a release from the undertaking given by Mr D'Alessandro, and that an aggravating factor was that one of the disbursement of fees thereby providing Mr D'Alessandro's firm with an advantage.
4. I can see that there was a difficult situation. The sum total of the net assets was not great. There appears to have been no meeting of the minds between the respective clients and indeed it would appear that from the fact that there was no correspondence from the husband's solicitors for some eight months that there was no enthusiasm on the part of the husband to have the matter settled. The proposition was put that Mr D'Alessandro had lost control of his client and I accept that under some circumstances this may well have been the case. However the giving of an undertaking is a serious matter. Undertakings are routinely given by legal practitioners to each other and they are a very effective mechanism for expediting matters and for ensuring that matters are done correctly. Standing behind the giving of the undertaking is the understanding on the part of members of the profession that undertakings will be adhered to and this is reflected in the wording of the Rule 22.1:

A practitioner who in the course of the practitioner's practice communicates with another practitioner orally or in writing in terms which expressly or by necessary implication constitute an undertaking on the part of the practitioner personally to ensure the performance of some action or obligation must honour the undertaking so given strictly in accordance with its terms and within the time promised or if no precise time limit is specified within a reasonable time.

1. The word strictly is one which I wish to emphasise. The giving of an undertaking is not something that a legal practitioner does lightly. Its wording should be carefully considered and thought must be given to the ability of the legal practitioner to comply in absolute terms with that undertaking.
2. Given the circumstances of this case it is clear that resolution of the matrimonial or the de facto property dispute was not going to come easily. However, the undertaking specifically states that the net proceeds of the sale of the property were to be invested in a joint interest bearing trust account pending resolution of the matter.
3. The breaches can be seen at several levels. First of all the funds were not invested in a joint interest bearing trust account. Secondly, there has been, or there was during the appropriate period, no resolution of the matter. Whilst this may well be seen to be frustrating, legal practitioners must understand the binding nature of an undertaking. Those funds should have been invested in a joint interest bearing trust account and should not have been disbursed. If the legal practitioner, Mr D'Alessandro came under pressure from his client to disburse the funds he should have resisted and if the pressure had continued he should have sought assistance from the Ethics Committee of the Law Institute. The unilateral disbursement of funds was not a course of action open to Mr D'Alessandro.
4. The submission on behalf of the Legal Services Commissioner that the disbursement of the $4,157.23 from the trust account to Mr D'Alessandro's firm by way of legal fees is an aggravating factor is one which I accept. The overall position is that the undertaking was in very clear terms, that it was breached and that as part of that breach funds were disbursed to Mr D'Alessandro's firm. In all the circumstances I order Mr D'Alessandro to pay to the Legal Services Board a fine of $4,000.00.
5. The respondents pay to the applicant its costs fixed by this Tribunal in the sum of $3,357.60.