MEMORANDA OF ADVICE
A memorandum of advice or an opinion is not a formal legal document and thus there are no formal requirements as to its form and content. Individual lawyers and firms will have their own style and format. However, it is important that such documents are written in a style that is clear, concise and precise.
It is also the case that such documents will normally have been requested by a client or other person aware of the background and the general legal position. Consequently, it is necessary only to set out in the memorandum of advice or opinion such facts as are material to a recommendation or material observation. It is not generally necessary to present background, other than an articulation of the instruction or issue. A memorandum of advice or opinion should address specifically the questions asked and such other issues as are necessary to ensure the provision of proper and competent advice.
It is important to remember that a memorandum of advice or an opinion will be judged by the usefulness and relevance of the advice it gives. It is not an academic paper.
Legal research is vital as the specific issues upon which advice is requested will be such as to necessitate detailed examination and consideration of the law. If the issues were clear then advice would not normally be required. In regard to certain matters, it may be necessary, in discharging the burden of providing specific yet comprehensive advice, to refer to policy issues. This may, for example, impact on the interpretation or administration of the law. Of course, where advice is requested specifically in regard to reform, then a wider approach will be required.
The memorandum of advice or opinion should not be used to exhibit the writerâ€™s wide learning or general expertise. A much more forensic and focussed approach is required. Consequently reference and citation of material that is not directly relevant to the issues should be avoided. On the other hand detailed citation and referencing is necessary for those documents and materials pertinent to the advice being offered.
The words of Lord Roskill in Pioneer Shipping Ltd v. BTP Tioxide Ltd  2 all ER 1030 should be noted:
â€œ I hope I shall not be thought discourteous or unappreciative of the industry involved in the preparation of counselâ€Ÿs opinion if I say that today massive citation of authority in cases where the relevant legal principles have been clearly and authoritatively determined is of little or no assistance and should be discouraged.â€
While deviation from the following suggested form may be indicated in the instructions, generally speaking the better approach is as follows. Note, however, instructions from, for example, Government Departments may indicate a different form.
The memorandum should be written in numbered paragraphs and should be headed
â€žMemorandum of Adviceâ€Ÿ or â€žOpinionâ€Ÿ as appropriate. Headings and sub-headings should be used to facilitate clarity in presentation.
The document should set out its purpose. For example, â€žI am asked to advise on â€¦â€Ÿ or â€žI am instructed to advise â€¦ on the following questions of law...â€Ÿ While the advice needs to be set in context, clients do not like paying for a recital of their own instructions. However, it is important that anyone coming new to the memorandum or opinion should be able to grasp its relevance without reference to other documents. It is also important that the terms upon which the advice is being given are also set out. The document should clearly show exactly what issues it is seeking to address. However, it may be that there are other significant matters that while not appearing in the instructions, if not referred to would render the advice misleading or materially incomplete. This will be a matter of professional judgment. If other (additional) matters are to be addressed then they should be flagged up in the introduction.
Summary of Advice
Where advice is requested in regard to liability on certain facts then it is appropriate to clearly and succinctly summarise the advice being given at the outset.
Causes of Action/offences
In cases where advice is requested in regard to issues of liability, whether criminal, regulatory or civil, then it is important to identify the relevant causes or offences ( if they have not been disclosed) and consider whether all necessary legal elements are present on the facts (as given). Where advice is requested in regard to the maintenance of an action, then it might be relevant to refer to deficiencies in the factual information provided. While it is not desirable to give advice on hypothetical facts there are occasions when such would be helpful in presenting a comprehensive picture. It must be remembered that the advice being given may well be at a relatively early stage in a matter and indications as to what additional facts, after proper inquiry, might assist an argument would be beneficial. Where the advice relates to issues of liability then it is also necessary for it to address whether, on the facts, it is likely that all elements (of the action or crime) will be capable of being established at trial.
Given that the provision of advice, in this context, is not an academic exercise, fanciful issues should be avoided. The advice should indicate the relevant and practical issues and the likelihood of result.
Where advice related to issues of liability reference should be made to relevant legal defences with an assessment as to their likely impact on the result.
Where the advice is concerned with the implication of liability then it should also refer specifically to the remedies that are available and indicate what might be achieved by invoking them. This may involve discussion of damages or the availability of other orders.
Advice on Specific Issues of Law
It is not uncommon for organisation to require specific advice on a legal issue that may have general relevance, such as the interpretation of a statute or the impact of an amendment. Indeed, advice may be requested as to what needs to be done to improve the operation of a particular law. The same clear and precise approach should be adopted. In assuming factual situations it is also important to adopt a realistic approach. Fanciful scenarios should be avoided, although in the exercise of professional judgment significant albeit unlikely scenarios might need reference.
Procedural and Evidential Issues
Such issues are of considerable practical significance. However, in the context of present exercise it is not necessary to consider such matters in any detail unless, the instructions specifically require this.
If the thrust of the advice or opinion has been set out in summary at an earlier stage then the conclusion may refer to this and elaborate as appropriate. What is important is that a reader of the memorandum or opinion should be left in no doubt as to exactly what is being advised (and, depending upon the nature of the instructions what further steps are required to be taken)