Strategy and written reporting - Risk analysis and ethical c...

Learning Outcomes

This article explains risk analysis and ethical considerations in strategy and written reporting, covering:

• Structuring clear, logical written advice using a disciplined four-stage process (preparation, planning, drafting, checking)
• Evaluating legal and practical risks, weighing probability, impact, and mitigation
• Identifying and addressing ethical issues (confidentiality, conflicts, honesty, duty to the court) in written communication
• Researching law and facts efficiently to support accurate, client-centred analysis
• Presenting options with pros and cons, likely outcomes, costs, and timeframes in plain English
• Integrating client care information and recording decisions, responsibilities, action points, and review dates
• Applying relevant procedure (eg pre-action requirements, limitation) when advising on litigation or ADR
• Communicating transparently, avoiding jargon and bias, and tailoring tone to the recipient (client or supervisor)
• Planning and checking work under time pressure to ensure accuracy, consistency, and alignment with objectives

SQE2 Syllabus

For SQE2, you are required to understand how to deliver written reports that integrate risk analysis and ethical considerations, with a focus on the following syllabus points:

• identifying and assessing legal and practical risks relevant to the client’s objectives
• structuring clear, logical, and concise written reports in response to a supervisor or client question
• recognising and addressing ethical issues, including confidentiality, conflicts of interest, and duty to the court, in written communication
• advising on courses of action and managing client expectations regarding risks, costs, and possible outcomes
• using a systematic four-stage approach (preparation, planning, drafting, checking) to produce accurate, client-centred written advice
• applying relevant procedure (eg pre-action requirements, limitation, costs and timeframes) when advising on litigation or ADR options.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a written report, what key elements should always be included when advising a supervisor on a client’s potential claim?
2. What should you do if you identify a significant conflict of interest when preparing a report for a client?
3. How would you present risks to a client who wishes to pursue an aggressive litigation strategy?
4. State two professional conduct obligations that must be observed when submitting written advice to a client.

Introduction

When writing reports and advice for the SQE2 assessments, you must go beyond simply stating the law. You need to demonstrate the ability to assess risks, communicate clearly, and act ethically. This requires a disciplined approach: take precise instructions, research and analyse the law and facts, plan the structure of your report, draft in clear English, and check the accuracy and implications of your advice. The law and facts interact symbiotically—legal analysis may reveal gaps in the facts, while further facts may reshape the legal position. A good written report explains how the law applies to the client’s particular circumstances, sets out options and consequences, and records practical next steps, including timelines and costs.

Key Term: Written Report
A structured analysis, usually drafted for a supervisor or client, that applies the law to facts, presenting risks and recommendations clearly in writing.

Strategy for Written Reporting

In practice, solicitors spend significant time providing written advice—whether to clients, supervisors, or other professionals. Effective reports should be concise, well-structured, and tailored to the recipient's needs.

A four-stage process underpins good writing and drafting:

• Preparation and research: take full instructions, identify objectives, gather further facts, and research current law and procedure.
• Planning: decide the structure and essential content, including headings and logical order.
• Drafting: write clearly and precisely, using definitions consistently and avoiding jargon and archaic expressions.
• Checking: proofread for accuracy, clarity, and consistency; confirm names, figures, dates, cross-references, and that the advice meets the client’s objectives.

Structuring a Written Report

A good report will typically follow this order:

1. Summary of Instructions/Issue: Briefly set out what you have been asked to do.
2. Summary of Conclusions: Set out your headline advice/messages at the top for clarity.
3. Relevant Facts: Concisely state the material facts guiding your analysis.
4. Legal Analysis: Identify the specific legal issues arising and state the applicable law.
5. Risk Analysis: Assess both legal and practical risks of possible options.
6. Ethical and Professional Issues: Highlight and address any ethical considerations.
7. Options and Recommendations: Advise on available next steps, stating clear recommendations.
8. Practicalities and Costs: Advise the client about costs, timeframes, and other practical implications.
9. Action Points: Clearly allocate next steps or decisions for both client and solicitor.

In planning, favour logical sequencing and clarity. Use short paragraphs and headings, define terms where needed, and avoid padding or compound prepositions that obscure meaning. Where appropriate, tabulate series of points for clarity and number paragraphs to aid navigation. Always use precise language (eg “between 10–12 weeks” rather than “soon”) and prefer active voice unless the passive better serves objectivity. Adopt inclusive, respectful language and avoid unnecessary technical jargon, explaining legal terms in plain English when they must be used. If you are drafting on behalf of a supervisor (“ghosting”), match tone and style, and ensure references and enclosures are correct.

Key Term: Written Report
A structured analysis, usually drafted for a supervisor or client, that applies the law to facts, presenting risks and recommendations clearly in writing.

Worked Example 1.1

You are asked by your supervisor to report on whether your client should pursue a claim for breach of contract. The contract is unclear and there is a risk the other party will raise a valid defence.

Answer:
Begin your report by setting out the client’s objective (e.g., recovering damages for breach). Summarise the background facts. In your analysis, identify the strengths: e.g., apparent breach. State the weaknesses: e.g., contractual ambiguity and credible potential defence. Consider the risk of litigation costs. Advise on recommended next steps, including further evidence gathering if appropriate. Highlight any urgent deadlines (e.g., limitation). Present your recommendation with supporting reasoning.

Risk Analysis in Written Advice

For SQE2, risk analysis involves systematically addressing uncertainties and potential negative outcomes when advising a client. This goes beyond stating the literal legal position.

Robust risk analysis is client-centred and options-based. Identify the client’s goals, then assess how legal and practical risks might impede them. Consider probability and impact: what is likely to go wrong, how serious would the consequences be, and how readily can risks be reduced?

What to Consider

• Strengths and Weaknesses: Identify which facts favour/by favour or hinder your client’s position.
• Legal Uncertainties: Note ambiguities in law or fact that could affect the outcome.
• Cost and Time: Quantify financial exposure, likelihood of success, and likely timescales.
• Alternatives: Assess options (e.g., settlement, negotiation, litigation, ADR) and consequences.
• Client Objectives: Ensure the advice reflects what the client wants to achieve, within legal and ethical limits.
• Key procedural risks: Consider limitation periods (eg, Limitation Act 1980), compliance with any relevant pre-action protocol, evidential gaps, and potential interim applications or costs management issues.
• Commercial and reputational risks: Factor in business disruption, cash flow, brand impact, and stakeholder relationships.
• Enforcement and practicality: Assess recoverability of damages or ability to enforce specific performance; consider the other party’s solvency and assets.
• Negotiation factors: Identify a realistic “best alternative to a negotiated agreement” (BATNA) and the consequences of stalemate.

Group risks for clarity (eg, time, financial, evidential, legal, conduct) and track when each risk could arise during the matter. For high-impact risks, propose mitigation strategies and record them as action points with target dates.

Key Term: Risk Analysis
The process of identifying and evaluating factors that may adversely affect the outcome for the client, including legal, financial, and practical risks.

Worked Example 1.2

A client wishes to file a claim against a former business partner but has incomplete evidence and there is a risk of a counterclaim.

Answer:
In your report, outline the evidence gaps and the risk of proceeding on weak facts. Advise on the potential that the former partner may file a counterclaim—and the cost/impact if that happens. Recommend practical steps like seeking further evidence and warn the client that proceeding without it introduces significant risk of loss and costs.

Worked Example 1.3

Your client, a supplier in a long-standing commercial relationship, faces a disputed invoice. They want to “go all out” with proceedings. They also depend on the buyer for future work.

Answer:
Set out objectives (recover sums due while preserving the relationship). Identify legal merits (contract terms, evidence of delivery/acceptance) and practical risks (costs, time, disruption, reputational fallout). Present options: pre-action letter with proposal for a without-prejudice meeting; early mediation; staged payment plan; protective issue of a claim if limitation nears. Explain the pros/cons: litigation may secure a judgment but risks costs and damages the relationship; mediation may be quicker, cheaper, and support future trading. Recommend a phased approach: send a protocol-compliant letter of claim proposing mediation, gather and organise evidence, diarise limitation, and authorise protective issue only if talks fail. Record action points and review dates.

Ethical Considerations in Written Reporting

Written reports must always comply with ethical and professional standards. These obligations apply both when advising directly and when preparing drafts for supervisors or clients.

Solicitors must act with honesty and integrity, maintain independence, and uphold public trust and confidence. In written work, this means not misrepresenting law or fact, not omitting adverse material deliberately, not taking unfair advantage of obvious mistakes in counterpart drafts, and ensuring that advice is competent and in the client’s best interests. You must also respect equality, diversity and inclusion in your language and approach.

Common Ethical Issues

• Confidentiality: Preserve confidential client information and do not disclose without informed consent or legal obligation.
• Conflict of Interest: Avoid acting for conflicting interests and disclose any potential conflicts promptly.
• Honesty and Integrity: Do not misstate facts or law, omit adverse material deliberately, or mislead recipients.
• Duty to the Court: Avoid including information that could mislead a court, and always draw attention to adverse authority or facts if making submissions.

When negotiating or amending drafts, ensure changes are transparent and identifiable; do not conceal amendments or exploit a counterpart’s mistake. Use inclusive language and avoid stereotyping or biased expressions. If ghosting, ensure the correspondence and advice reflect the firm’s standards, are accurate, and meet client-care requirements on costs and timescales.

Key Term: Ethical Considerations
Professional responsibilities that require solicitors to act honestly, avoid conflicts, preserve confidentiality, and uphold standards of the profession in all written and oral advice.

Worked Example 1.4

You discover in the course of preparing advice to a client that your firm has recently acted for the opposing party in a related matter, creating a potential conflict.

Answer:
You must raise the conflict immediately with your supervisor and cease work until the situation is clarified. Do not proceed with drafting or sending advice until the conflict has been resolved in accordance with the firm’s protocols and the SRA Code of Conduct.

Key Term: Professional Conduct
The rules and principles that dictate acceptable behaviour for solicitors, designed to protect clients, the courts, and the wider public.

Exam Warning

For SQE2, you may be tested both on your ability to spot a subtle ethical issue and on your ability to explain the correct response. Always record the steps you would take and when to escalate the matter.

Presenting Risks and Options

When advising, it is essential to present risks transparently. Avoid both minimising or overstating the client’s position. Clear written communication increases the likelihood that advice will be understood and acted on correctly.

Integrate client care and costs information in your report: explain estimated fees and disbursements, the time frame to conclusion, when you will next update, and what follow-up letter will confirm. Summarise what you will do and what the client should do, with target dates. Ask explicitly if the client has any other concerns before closing the advice, and set review points.

Tips for Written Communication

• Use plain English and avoid jargon.
• Distinguish between facts, opinions, and recommendations.
• Structure your advice logically—use headings and subheadings.
• Disclose both strengths and weaknesses of each possible course of action.
• Set out options clearly, with pros and cons for each.
• Advise on practical consequences, such as costs or delays.

Provide a realistic range of outcomes where exact predictions are impossible, indicate assumptions (eg, availability of witnesses), and mark advice as preliminary where further research or evidence is required. Where multiple forums or media could be used (correspondence, telephone, meetings), explain how each affects speed, flexibility, and cost, and recommend the one that best supports the client’s objectives.

Worked Example 1.5

Your supervisor asks for a short written plan to implement your recommendations in a shareholder dispute where early settlement is preferred but limitation is months away.

Answer:
State the overall objective (negotiated settlement preserving value; protective steps if talks fail). Break implementation into steps with timings: (1) Collate and review key documents and witness notes (2 weeks). (2) Draft and send a protocol-compliant letter before action proposing mediation (1 week). (3) Schedule and attend a without-prejudice meeting (4 weeks). (4) If negotiation fails, issue protective proceedings before limitation and seek a stay for mediation (by limitation date). (5) Provide cost estimates per step and identify the responsible person (solicitor/client). Include risk mitigations: diarise limitation, consider interim relief if assets dissipate, and update the client after each step. Confirm next contact date and the follow-up letter that will record agreed actions.

Revision Tip

For SQE2, practice drafting concise reports where you identify risks, set out ethical issues, and recommend clear next steps for the client, supervisor, or both.

Key Point Checklist

This article has covered the following key knowledge points:

• How to structure a written report for a client or supervisor, using a disciplined four-stage process (preparation, planning, drafting, checking)
• The fundamentals of risk analysis and the identification of legal, evidential, procedural, financial, and practical risks
• How to align advice with client objectives and present realistic options (including ADR and staged approaches) with pros and cons
• The main ethical considerations for solicitors in written reporting, including confidentiality, conflicts, honesty and integrity, and duty to the court
• Good practice when negotiating or amending drafts: transparency, fairness, and avoidance of taking advantage of mistakes
• Ways to present risks and options transparently in writing to support informed client decisions, including costs and timelines
• How to record action points with responsibilities and review dates, and integrate client care and costs information into written advice

Key Terms and Concepts

• Written Report
• Risk Analysis
• Ethical Considerations
• Professional Conduct