Model Closing Opinion Letter (Annotated) - American Bar Association

2 Model Closing Opinion Letter (Annotated)
(1) Governing Law Provision Stipulates the Law of a Jurisdiction
on Which the Opinion Giver Is Not Qualified to Opine. If the
Opining Jurisdiction is not one of those on which the Pennsylvania
lawyer is qualified to opine, then special treatment must be accorded
the enforceability Opinion. It would be possible, of course,
for the client to employ New York counsel to give a Remedies Opinion
upon which the Pennsylvania lawyer could rely. But if counsel
for a New York bank drafts the credit agreement so as to specify
that New York law shall be the governing law, it is contemplated
that such counsel can advise its own client as to New York law, and
it would not be cost-effective to request the Borrower’s counsel to retain
a third firm of lawyers to opine as to New York law. (See Opinion
4B, p. 79, above, for the recommended course to follow for the
proper language for an Opinion; New York local counsel would not
be retained.)
(2) Opinion Giver Not Qualified to Opine on Law of Jurisdiction
of Organization of Borrower (or Guarantor). If, for example, the
client (Borrower) or a Guarantor is a Utah corporation, an Opinion
Letter from local counsel would ordinarily be required, because the
law as to due incorporation, good standing, and authorization of
Transaction Documents would be that of Utah, the jurisdiction of
organization.
(3) Special Counsel—Special Matters. The client may have special
counsel advising it in connection with tax, antitrust, environmental
regulatory, ERISA, intellectual property, or other similar
matters, and in that instance if an Opinion is requested as to any
such matters, ordinarily the client may be expected to have such
special counsel give the requested Opinion. Another reason for special
counsel is that they may have better access to the facts, or have
already done some or all of the work required to render an Opinion.
The Pennsylvania lawyer may or may not wish to refer to such
Opinion Letter from Other Counsel in its Opinion Letter, but in any
event will not want to be responsible in any way for such Opinion.
(4) Reliance. The Opinion Giver should obtain permission from
the Other Counsel to rely on their Opinion, since permission to rely
is one key element in any malpractice claim against the Other
Counsel. See TriBar Report § 5.4.
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