Model Closing Opinion Letter (Annotated) - American Bar Association

2 Model Closing Opinion Letter (Annotated)
Note: One way lawyers establish the factual bases for an Opinion
Letter is to assume certain facts to be true. A factual assumption is
a bridge that allows the Opinion Preparers to render an Opinion
without investigation as to the facts being assumed. Subject to the
qualification as to unwarranted reliance (described above in note
(a) to section B, p. 92, above), the Opinion Giver may rely, without
investigation, on (i) any assumptions expressly stated in the Opinion
Letter, and (ii) certain assumptions that are implicit and need
not be stated expressly. The TriBar Report states in section 2.3 that
Opinion Preparers are often permitted by the Opinion Recipient to
rely on assumptions when (i) information is not available (or is
only available at substantial cost or delay), (ii) the facts being assumed
relate to the Opinion Recipient, or (iii) the cost of establishing
the facts exceeds the likely benefit from an investigation to
verify their existence.
Assumptions regarding facts that are common to transactions generally
and apply regardless of the type of transaction or the nature
of the parties need not be stated in Opinion Letters. See TriBar Report
§ 2.3(a); ABA Principles IIID. Glazer, in section 4.3.3, concludes
that assumptions of general application, such as those set
forth in section 4 of the ABA Legal Opinion Accord, may be relied
on without being stated, and concludes that
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[o]mitting those assumptions allows stated assumptions to be
reserved for matters that are not of general application, that
are controversial, that require precise delineation or that might
give rise to a misunderstanding if not spelled out expressly.
Based on the foregoing principles, the Legal Opinion Committee believes
that it is proper and customary practice in Pennsylvania to
omit from Opinion Letters self-evident assumptions of general application
such as the following:
1. Legal capacity: Clients who are natural persons, and
natural persons acting on the client’s behalf, have the requisite
legal capacity.
2. Title to property: The client holds the requisite title and
rights to any property involved.
3. Legal requirements re enforceability—parties other than
the client: Each party (other than the client) has satisfied legal
requirements necessary to make the Transaction Docu-