What is the difference between the legal opinion and the memorandum
Despite the fact that both the memorandum and the legal opinion are the lawyer's answer to the legal question posed and, depending on how the question is formulated, can be considered as a legal council, the tasks that each of these types of legal writing performs are different. The legal conclusion (in the sense that Western legal practice attaches to it), unlike the memorandum, is the final document in which the final opinion of the lawyer on the given legal matter is secured. Therefore, the main difference between a legal opinion and a memorandum is that the legal opinion is much more formalized than the memorandum. This is manifested in two aspects.
First, in the more stringent requirements for the content of a legal opinion, the way and form of its compilation, in comparison with the requirements that are imposed on the memorandum.
I recall that the memorandum is primarily an analysis, so it can be compared with analytical material, in which, based on our research, we give our views on the given problem. We analyze the situation from different sides, identify problem areas, assess risks, explain the advantages and disadvantages of various behaviors, give a recommendation or let our addressee make his own choice. The tone of the document, of course, depends on how the question is formulated, and it happens that the memorandum sounds just as categorically and definitely as the legal opinion. Nevertheless, the purpose of the memorandum as a type of legal letter is to discuss a particular legal issue and formulate a recommendation.
Unlike the memorandum, the legal opinion, as a general rule, implies a greater degree of concretization. This is a document in which, based on the most complete legal analysis, conclusions are given on specific issues and in relation to specific facts. This, I repeat, the final document prepared by a lawyer at the request of the client; this is a statement, not a reasoning. The legal opinion, like the memorandum, is the lawyer's answer to the question posed, but unlike the memorandum, this is not an answer-analysis, but the answer is the final opinion.
Lawyers can provide an opinion only if they are fully confident of the findings in it.
A. N. Field.
Legal opinions in business turnover
That is why anything that can not be checked for objective reasons (or the verification goes beyond the competence of a lawyer or a law firm or outside the scope of the question posed to a lawyer) should be indicated in the text of the conclusion. If an unambiguous answer can not be given on any question, the conclusion should contain an explanation. These goals are presumptions and reservations, which will be discussed in more detail below.
Secondly, formalization of the legal opinion causes a higher degree of responsibility of the law firm (and the author of the legal opinion including) for the contents of the prepared document.
This does not mean that reduced demands are placed on the memorandum. The lawyer is responsible for any advice that he gives to the client, in whatever form this board has been vested, including that expressed in an e-mail or even orally. Everything depends on the circumstances under which legal advice is given, on the tone of the council and on the form in which it appears. Therefore, a legal council, expressed in any written form, can be equated with legal consequences to a legal opinion. Moreover, the lawyer is responsible for what he wrote in a memorandum or legal opinion - documents that are prepared specifically at the request of clients.
Whatever document the lawyer is working on, whether it is a memorandum or a legal opinion, it is assumed that he has studied all the relevant materials, analyzed the legal issues related to the specific case and came to the conclusions for which he bears professional responsibility. However, since the legal opinion is the final opinion of the lawyer on the legal question posed to him, the lawyer should understand that the client will rely on the legal opinion given to him and, possibly, will act in accordance with what has been said in it.
We need to consider how the legal opinion can be assessed in case of a lawyer's accusation of poor-quality legal services. In American practice, for example, a legal opinion can be regarded by the court as "best evidence" (best evidence) that the lawyer did give legal advice to the client and was aware that the client would rely on his advice.
Questions of the responsibility of lawyers for providing substandard legal services are beyond the scope of this work. However, since the qualitative component of the work of a lawyer is now gaining increasing importance, I recall that a lawyer, when working on a legal document, should be aware that he is responsible for the text he compiled, and a mistake or an unclear thought can be grounds for attracting lawyer or law firm to account.
In assessing the legal significance of a legal opinion, it is necessary to take into account the jurisdiction within which it will be used. Business ties are expanding, United States business, and therefore, commercial disputes, go beyond the country. Therefore, when drawing up a legal opinion, United States lawyers should keep in mind that in the event of a dispute, it can be evaluated in accordance with the legal principles and norms adopted in the West.
The current business turnover requires that information about the lawyers who prepared it be included in the legal opinion. As a rule, a conclusion on behalf of the firm is signed by its management. However, strict rules do not exist in this respect. In some law firms, for example, the signature is put by the partner who prepared the conclusion, or the conclusion is made by the partner responsible for preparing such documents.
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