Learning Outcomes
After reading this article, you will be able to: identify key risk management requirements for content in legal writing; understand when and how to use assumptions, caveats, and risk warnings in advice and documents; distinguish between implied and express risk disclosures; and structure your communications to ensure compliance and effective risk limitation, as assessed in SQE2.
SQE2 Syllabus
For SQE2, you are required to understand the practical steps for managing risk in legal documents and advice. In revision, focus particularly on:
- the use of assumptions and caveats in legal drafts and correspondence
- effective drafting of risk warnings to protect clients (and solicitors)
- how and when to communicate limitations and uncertainties to clients
- managing scope of retainer and liability in advice
- recognising consequences of not including appropriate warnings
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.
- What is the difference between a caveat and a risk warning in legal advice?
- In which situations should you include an explicit assumption or caveat in a client letter?
- Which key risks must be highlighted to clients when a matter’s outcome is uncertain?
- What could be the consequence for a solicitor who fails to set out a clear limitation on the scope of advice when drafting a report?
Introduction
In legal practice, you have both a professional and a regulatory obligation to manage risk when producing written work. Clear, express communication about risks, limitations, and uncertainties helps clients make informed decisions and protects you from potential liability. Exam scenarios often test your ability to identify when a content-related risk arises and how best to address it in drafting.
Managing Content and Risk
Risk management in legal writing has two key aspects:
- Ensuring clients are properly warned of any relevant legal or factual risks.
- Limiting your own (and your firm's) liability if the client acts on incomplete, uncertain, or misunderstood advice.
This is achieved by using assumptions and caveats and, where appropriate, issuing direct risk warnings.
Key Term: assumption
An assumption is a fact you state as taken for granted in your advice or document, clarifying that you have not verified it and are not responsible for it.Key Term: caveat
A caveat is an express limitation, qualification, or warning about an uncertainty or gap in your advice; it flags a point the client must not ignore.Key Term: risk warning
A risk warning is a clear statement alerting a client to a material legal, factual, or commercial danger or uncertainty relevant to their decision or action.Key Term: scope limitation
A scope limitation is a statement that defines or restricts the boundaries of your advice or work, expressly excluding areas not covered.
Using Assumptions
Stating reasonable assumptions is normal when key facts have not been confirmed. You must identify any critical facts you are relying on but have not checked. For example, if you have not seen an original document, say so.
Assumptions should be specific and only used where appropriate. Over-reliance can undermine advice.
Worked Example 1.1
You are drafting a report and have not received copies of all relevant contracts. What should you state regarding missing documents?
Answer:
Include an assumption such as, "This advice is given on the assumption that any missing agreements reviewed subsequently do not materially alter the contents of the agreements we have already seen."
Caveats in Documents and Advice
You must use caveats to signal any limitations on what you can confirm, where facts are genuinely unclear or the law is unsettled. A caveat protects you if later events reveal that different facts or law apply.
Caveats should be precise, not generic.
Worked Example 1.2
You have identified a recent case that is being appealed. What should you include in your advice?
Answer:
Insert a caveat: "Please note that this area of law is awaiting clarification from the Court of Appeal. The guidance provided may change once a decision is handed down."
Risk Warnings
Risk warnings are essential whenever there is any material risk, uncertainty, or adverse outcome the client could realistically face. They must be explicit, not implied. This includes legal, factual, or commercial dangers, as well as professional limitations.
Risk warnings also include clear advice to seek further information or refrain from acting until certain pre-conditions are met.
Key Term: professional risk
The risk of legal liability, disciplinary action, or loss caused by the solicitor's act or omission, managed by including accurate content-related warnings.
Scope Limitation and Limitations on Advice
Specifying the limits on what your advice covers avoids assumption by clients that you have addressed or checked more than you have. State the limits clearly, and refer back to any agreed written scope of instruction.
Worked Example 1.3
A client consults you about a property purchase. You only provide tax advice, not on the physical structure or title.
Answer:
State: "Our advice relates solely to tax implications and does not address any legal or structural defects in the property, or matters of title or tenure."
Failing to Communicate Risk
Failing to include appropriate caveats or risk warnings exposes you (and your firm) to liability if the client suffers loss from acting on misunderstood, incomplete, or over-optimistic advice. Clear disclaimer language and client confirmation may be required.
Exam Warning
For the SQE2, failure to indicate the limits or risks of your advice, where relevant, may result in failing to "enable the client to make informed decisions" and a loss of marks.
When to Use Assumptions, Caveats, and Warnings
Include assumptions when:
- You have not verified a key fact.
- You rely on documents or information not reviewed.
- External experts are relied on but not appointed by you.
Insert caveats where:
- The law is unsettled or likely to change.
- There is a factual gap or unknown relevant to the outcome.
- You can advise only within an agreed scope.
Include risk warnings whenever:
- There is a material legal or commercial danger.
- The client may misinterpret the likely success.
- There is a risk of actions outside your control affecting outcome.
Revision Tip
When in doubt, be specific: set out each key risk, limitation, or uncertainty explicitly. Vague statements rarely protect you or inform the client.
Summary
Effective risk management in legal writing requires you to use assumptions, caveats, and risk warnings whenever facts are unclear, law unsettled, or uncertainties and limitations exist—and to set out the precise scope of your advice.
Key Point Checklist
This article has covered the following key knowledge points:
- Assumptions are used to clarify what you are relying on without verification.
- Caveats state expressly any limitation, qualification, or uncertainty in your advice.
- Risk warnings alert clients to significant legal or commercial dangers relevant to their decisions.
- Scope limitations define what areas your advice covers—and equally, what it does not.
- Failure to include appropriate warnings or caveats can lead to client loss and solicitor liability.
- Always be specific and direct when setting out assumptions, caveats, and risk warnings.
Key Terms and Concepts
- assumption
- caveat
- risk warning
- scope limitation
- professional risk