Advice or opinion?

One of the most common activities that lawyers undertake as part of the provision of legal services to clients is the giving of advice. In English, we talk about lawyers providing “legal advice” or “legal opinions”. In Chinese, the terms used are falü yijian or falü zixun. In this issue, I will look at the different contexts in which these terms are used in English and Chinese. I will also look at the ways in which the provision of legal advice is defined for the purposes of regulating “legal practice” or “legal services” in certain jurisdictions.

The English terms

First, it is important to note that there are differences among common law jurisdictions in relation to the use of the English word “opinion”.

In the US, the word “opinion” is often used to describe a “judicial opinion”; namely, the detailed reasons or explanation that judges give in support of their judgments or decisions, most of which are published in official case reports. In this context, the word “opinion” is often seen in the following combinations: “majority opinion”, “concurring opinion”, “minority decision” and “dissenting opinion”.

In some jurisdictions in the US, courts can issue “advisory opinions”, which are opinions issued by a judge or a court upon the request of a legislative body or government agency. Although they do not have binding effect, advisory opinions are sometimes used in subsequent cases as persuasive evidence to support an argument as to the interpretation or application of the law.

In the US, advisory opinions can also be issued by the attorney-general, who is a member of the executive government and head of the Department of Justice. In this context, advisory opinions are usually requested by the government to assist in the formulation of policy in areas such as intergovernmental relations, finance and tax.

By contrast, the courts in other common law jurisdictions such as the UK, Australia and Hong Kong do not have the power to issue advisory opinions and will only hear actual cases that are brought by the parties to a dispute. In these jurisdictions, the use of the word “opinion” is less common; instead, the words “judgment” or “decision” are more commonly used to describe the reasons given for the judge’s decision in a case.

In all common law jurisdictions, the word “opinion” is commonly used in the context of a “legal opinion”. Also known as a “closing opinion”, this is a formal opinion that is issued by a law firm for the purpose of completing a business transaction. For example, in loan transactions, a formal legal opinion confirming the corporate capacity of the borrower and the enforceability of the transaction documents is often one of the conditions precedent that must be satisfied before the borrower can make a drawdown request. And in a share purchase agreement, a legal opinion confirming that the vendor has title to the shares is often a condition precedent to the payment of the purchase price and the transfer of the shares into the name of the purchaser.

In jurisdictions such as England, Australia and Hong Kong, the word “opinion” is also used in the context of “counsel’s opinion”; namely, an opinion on a point of law that is issued by a barrister in response to a “brief” from a solicitor.

By contrast, the word “advice” is generally used to describe legal advice that lawyers provide to clients to advise them on the application of the law to their circumstances and their rights and obligations. Although “advice” is often used interchangeably with “opinion”, the term “opinion” implies the exercise of some judgment in determining how the law might be interpreted. In other words, it focuses more on the interpretation of law than on the application of laws to a set of facts.

As I will explain below, the definition of “legal advice” is an important question in those jurisdictions where the provision of legal advice is an activity that only qualified lawyers can undertake.