Several years ago, the Working Group on Legal Opinions (WGL")
and the Legal Opinions Committee of the American Bar Association's
Business Law Section (the ABA Committee) undertook a joint project
to identify selected aspects of customary practice and other
practices applicable to third-party legal opinions that are
commonly understood and accepted throughout the United States.
Third-party legal opinions (or closing opinions) are typically
delivered at the closing of a business transaction by counsel for
one party to satisfy a condition of the other party's obligation to
close. Closing opinions are relatively concise, highly structured
documents that provide professional judgments of the opinion giver
regarding legal matters of concern to the recipient of the closing
opinion. The joint project is an effort to foster a national
opinion practice to facilitate the opinion process that will be
widely recognized and endorsed. It is designed to build upon the
Statement on the Role of Customary Practice in the Preparation
and Understanding of Third-Party Legal Opinions (63 Bus. Law.
1277 (2008)), which has been approved by over 30 bar associations
and other groups.
To undertake the project, a committee (the Project Committee)
that includes representatives of various state bar groups and
others interested in opinion practice was formed. The Project
Committee has more than 25 members and includes lawyers who give
opinions and are counsel to opinion recipients and whose primary
practice areas are commercial finance transactions, capital markets
and securities, and real estate. I serve as co-chair of the
project. The Project Committee has held numerous conference calls
and meetings over the years and reviewed and discussed countless
drafts of a proposed statement, all with an objective of having the
bar groups and others endorse the project's ultimate work
The Project Committee examined the existing literature on legal
opinions, including various bar reports, and focused on updating
and amplifying the Legal Opinion Principles (53 Bus. Law.
831 (1998)) and the Guidelines for the Preparation of Closing
Opinions (57 Bus. Law. 875 (2002)) developed by the ABA
These efforts have resulted in preparation of a "Statement of
Opinion Practices" designed to update the Principles and
selected provisions of the Guidelines. An exposure draft
was circulated for comment in mid-2016 and revisions were made in
response to the comments received. The Project Committee has
recently approved a revised version of the statement for submission
to WGLO and the ABA Committee for their approval to be followed by
distribution to various bar groups and others for approval.
The statement seeks, through its being broadly endorsed, to
foster a national opinion practice with respect to those aspects of
third-party opinion practice it addresses. It covers such topics as
the application of customary practice to third-party opinions, the
role of facts and assumptions and the law addressed by opinions, as
well as key aspects of the opinion process. By using relatively
concise and direct statements, it is designed to be easily
understood by judges and juries who may be called upon to interpret
opinions. It also is intended to serve as a common baseline for
opinion givers and opinion recipients and their counsel to
facilitate the opinion process.
The Massachusetts Bar Association's Business Law Section,
through its Section Council, has reviewed the Statement and
requested the MBA itself to approve it.
Along with the statement, the Project Committee has prepared a
more concise statement called the Core Opinion Principles that is
drawn from the statement and is designed for use for incorporation
by reference in or as an attachment to an opinion letter by those
who wish to do so. The Core Opinion Principles also has been
submitted to the WGLO and the ABA Committee for approval and
distribution to bar groups and others for consideration.
The completion and approval of the statement and the related
Core Opinion Principles will be a significant accomplishment in
itself. The Project Committee recognizes, however, that the
statement does not cover everything that might be covered.
Therefore, it is continuing to consider whether the statement might
be expanded, including by developing over time a more comprehensive
Statement that could replace both the Principles and
Guidelines in their entirety, as well as by addressing
additional opinion topics. This work is just beginning and there
may be more to report on progress in the future.