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Godknows Hofisi Business & Law
The use of legal opinions is very common. It is standard practice for clients to ask their legal practitioners to write to them expressing an expert legal opinion on a certain legal issue or matter. The client may then use the legal opinion to make a decision.
It is important to understand what a legal opinion is. Lawyers are known for always saying “in my opinion or in my view” during discussions. The legal opinion being referred to in this article is different.
It can be taken to be the written opinion of a particular legal practitioner on whether or how certain laws apply to the situation presented by the client or if there are ways of dealing with the laws in some way for example exemptions or exceptions.
At times the situations presented could be lacunas or grey areas.
Users of legal opinions
Legal opinions prepared by legal practitioners are normally used by clients to make decisions concerning certain legal situations.
Some of the situations are summarised below:
Strengths or weaknesses of a matter which is pending in the courts
Options to deal with a legal issue confronting a client, for example a labour matter
Interpretations of certain clauses in a contract
Investment laws for example exchange control laws, immigrations laws, taxes, permits, etc
Compliance issues, for example with exchange control, environmental laws,
regulatory laws.
Effects of currency laws on local financial reporting since 2019
How to lawfully terminate a contract
Whether to continue with litigation or consider amicable or out of court settlement
How best to structure a commercial transaction.
How to deal with ZIMRA tax assessment
Dealing with overdue debt
Legal opinions by advocates
In Zimbabwe and other jurisdictions advocates, who are specialist legal practitioners for arguing matters in superior courts, also issue legal opinions at the request of other lawyers.
Some legal practitioners actually seek legal opinions from one or more advocates on certain specific, usually very technical or unique areas of the law.
Such legal opinions are then used to advise clients. In my view there is nothing wrong with that practice.
Contents of a written legal opinion
A legal opinion is normally in the form of a letter though at times it may be in the form of an email. The main components of the opinion include the following:
Date of the opinion
The client to whom the opinion is directed, for example an individual or an organisation
The title or subject matter for example “legal opinion on compliance with exchange control regulations”
Factual background of the situation as presented by the client
A summary of the legal question which the client asked the legal practitioner to address.
Methodology used by the legal practitioner, for example a review of applicable laws and recently decided court cases
Summary of the laws reviewed by the legal practitioner
Which laws are applicable to the situation. Whether there are any exceptions, exemptions, etc
Advice on possible course of action
Disclaimer that the legal opinion remains just an opinion and that the legal practitioner shall not accept responsibility should the opinion be used by third parties
Process followed by a legal practitioner is preparing a legal opinion
Request by a client
A client normally briefs a legal practitioner verbally or writes providing relevant facts and evidence to the situation such as contracts or other supporting documents.
The client then asks the lawyer to advise by way of a legal opinion on how best to deal with the situation
Research by the legal practitioner
The legal practitioner researches applicable laws. He or she interprets the laws and advises on whether or how they apply to the situation presented by the client.
For complex situations the legal practitioner will have to carry out a lot of research work.
Conclusion and legal opinion
The legal practitioner comes to a conclusion after considering the facts and the law.
He or she advises whether or how the law applies or if there are any exceptions, exemptions or other escape routes on ways of capitalise on the laws to derive benefits.
Reference is made to specific laws according to statutory provisions or decided court cases.
Conclusion
Use of legal opinions in legal practice and especially in commerce is widespread. Interestingly lawyers may even differ and it will be up to the client to make a decision or seek another opinion.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners/Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deal and transactions./He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his personal capacity./He can be contacted on +263 772 246 900 or [email protected]
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