A Legal Opinion is a determination of the legal situation with regard to a situation, company or transaction.
What is a legal opinion?
Legal Opinions are often issued by (larger) law firms. Usually the customers who request it are foreign companies that have no knowledge of local law. They therefore need an image of the legal situation, on the basis of which they can determine their policy. They want, in short, certainty. In general, only partners within a law firm are authorized to issue a legal opinion. It can involve various legal questions, the answers of which are often combined in one legal opinion:
- Is company X “in good standing”?
- Are Mr. X and Mr. Y executive directors and do they have representative authority for the transaction?
- Does X meet the environmental requirements?
- Are there labor law claims?
- Is the company involved in a legal procedure or dispute?
- Has bankruptcy or suspension of payments been applied for?
However, lawyers must keep a close eye on what they advise. For example, a Dutch lawyer may only make statements about Dutch law, as he has studied this. The documents of the Chamber of Commerce can also be out of date. A bankruptcy can also have been applied for just a day in advance and not yet processed. Or it may have been requested an hour after issuing the Legal Opinion (bankruptcies have retroactive effect until past midnight). Lawyers will therefore have to make a lot of reservations, because otherwise they can be held liable by a customer who has given a wrong advice.
Most larger offices annually issue dozens to hundreds of Legal Opinions.
In American law, reference is often made to precedents, previous lawsuits where similar issues pre-report; this is called “case law”. But virtually no situation in a lawsuit is completely the same as another. For that reason, prior to the actual lawsuit, a kind of preliminary investigation is often done of previous, comparable situations.
In this preliminary investigation, various legal cases are often compared and on this basis a prediction is made of the outcome of the present case. The document containing the analysis is also called “legal opinion”. On the basis of such a document, a party can decide whether or not to initiate legal proceedings; it is often also an asset in negotiations with the other party.
The motivation of a judgment by a judge is also called “legal opinion”. This is especially common when the judgment contains a new interpretation of the law or a court has several judges and one or a few of them have a dissenting opinion about the case.
Following the final negotiations on the CETA trade agreement with Canada, a legal opinion was asked several times. For example, the Canadian environmental group The Council of Canadians asked in September 2016 a legal opinion on the value of an additional declaration to the Convention proposed by the European Commission. The opinion was negative.
The European Parliament also requested a legal opinion from its legal service, asking whether the Court for Investment Disputes (ICS), as provided for in the CETA Trade Convention, was in conformity with European law. The opinion, published on September 5, 2016 decided yes, but this was challenged by lawyers from the NGO ClientEarth, who propose to the European Parliament or a member state to request a legal opinion from the Court of Justice, pursuant to Article 218-11 of the Treaty of Lisbon.