Model Closing Opinion Letter (Annotated) - American Bar Association

Opinion Paragraphs
ings threatened “in writing,” the Opinion Giver, in order to avoid
giving a misleading opinion, may need to disclose a substantial
and apparently serious claim known to the Opinion Giver that has
been made orally in a formal manner (see ABA Guideline 1.5,
TriBar Report § 1.4(d)).
(c) Necessary Review. Subject to the “Actual Knowledge” of the
Opinion Giver’s “Primary Lawyer Group” (see under “Actual Knowledge”
in note (b) to section B, p. 92, below, and the definition of “to
our knowledge” in paragraph (G), p. 104, below), the confirmation
should be based upon information provided by certifications of the
Company’s officers. The Opinion Preparer should not be expected to
review court or other public records, undertake any broader review
of its own files, or make inquiry of other lawyers in the firm. (See
ABA Principles IIIB; TriBar Report §§ 2.2.2(a) and 6.8.) Dean
Foods Co. v. Pappathanasi, 18 Mass. L. Rptr. 598 (Mass. Super.
2004), involved a litigation confirmation given in a much broader
form and addressed the issue of customary diligence where the firm
had knowledge of the proceeding. See also Donald W. Glazer and
Stanley Keller, A Streamlined Form of Closing Opinion Based on
the ABA Legal Opinion Principles, 61 Bus. Law. 389 (November
2005); Donald W. Glazer and Arthur N. Field, No-Litigation Opinions
Can be Risky Business: Looking at the Facts—and Beyond,
14 Bus. Law Today 6 (July/August 2005).
(d) Opinion as to Adverse Effect. The Legal Opinion Committee
disapproves of an Opinion in the form set forth in Appendix A-2,
paragraph 3, of the TriBar Report to the effect that no such litigation
exists that “may adversely affect the transactions contemplated
by the Credit Agreement or that may have a material adverse effect
on the Company.” Any Opinion as to “material adverse effect”
would be based largely on a financial judgment, which would be
inappropriate under ABA Guideline 3.2, which discourages use of
the materiality concept in an Opinion Letter unless objectively defined;
the TriBar Report itself (in section 6.6 n.162) states that the
phrase “transactions contemplated by” the Loan Documents is imprecise
and may be misleading.
(e) Not a Party, but Subject. The Legal Opinion Committee also
ordinarily disapproves of a request that an Opinion from outside
Counsel cover legal proceedings to which the Company is not a
party but is otherwise subject. See TriBar Report §§ 6.5.5 and
6.8 n.177.
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