Model Closing Opinion Letter (Annotated) - American Bar Association

2 Model Closing Opinion Letter (Annotated)
(f) Reliance on Company. Since the Opinion (or confirmation)
is largely based on information furnished by the Company, the
TriBar Report concludes that in most cases it could be omitted if
Opinion Recipients were instead to rely directly on the Company or
its inside counsel for such information. See TriBar Report § 6.8.
(g) Evaluation of Legal Proceedings. Evaluations of the potential
outcome of pending or threatened litigation normally should
not be given in the Opinion Letter; evaluation is best considered in
the informal due diligence process of the Opinion Recipient rather
than in a formal closing opinion. TriBar Report § 6.8, n.174. However,
if such an evaluation is given, it should be similar to the response
given to an audit inquiry in compliance with the ABA
Statement of Policy Regarding Lawyers’ Responses to Auditors’
Requests for Information, 31 Bus. Law. 1709 (1976). See the note
on page 61, above, referencing the need for client consent to the
making of such an evaluation.
BASIS FOR OPINION; QUALIFICATIONS, LIMITATIONS,
ETC.
Section A. Scope of Inquiry; Documents Examined
Note: (a) It is generally accepted that in the absence of an explicit
statement, the mere listing of documents examined should
not be understood to mean that the documents listed are the sole
basis for the Opinion. Ordinarily, regardless of such listing, the
Opinion Giver has the responsibility of reviewing all such documents
(and giving consideration to such matters of law and fact) as
the Opinion Giver has deemed appropriate, in its professional
judgment.
(b) It is possible, of course, for the Opinion Giver to expressly limit
the scope of inquiry to particular documents, matters, or procedures.
Such an express limitation is appropriate, for example,
when the firm acts as Other Counsel, which provides an Opinion to
the Opinion Recipient or to the principal Opinion Giver in support
of or supplementary to the latter’s Opinion, and the firm is provided
only with certain Transaction Documents. In that case, the
limitation on the scope of inquiry should be described in the Opin-
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