Portfolio 82-1st: Third-Party Legal Opinions

I. Introduction and Glossary

II. The Purposes of the Opinion Letter

III. Ethical Considerations and the Duties to the Non-Client Addressee and the Client

IV. Misleading Opinions

V. In-House Counsel Opinions

VI. The Structure of Third-Party Opinion Letters
. Introductory Material
A. Date, Address, and Signature
1. Date
2. Address
3. Signature
B. The Paragraphs Preceding the Opinions
C. The Opinion Paragraph(s) That Confirm Facts
D. The Concluding Paragraphs: Limiting the Law to Named Jurisdictions and Reliance to Specified Persons or Groups
E. Special Relationships with the Client: To Be or Not to Be Disclosed?

VII. The Supplemental Opinion (or Opinion in Lieu) of Other Counsel

VIII. Determining the Facts and the Law
A. Gathering the Facts
B. When Suspicion Renders Reliance Unreasonable
C. The Use, Abuse, and Misuse of Assumptions of Fact
D. The Law of the Letter

IX. The Remedies Opinion and Its Exceptions
A. The Remedies Opinion
1. Scope
2. The standard exceptions: bankruptcy and equitable principles
a. The bankruptcy exception
b. The equitable principles limitation
3. A sampler of sometimes perplexing provisions: will special treatment be necessary?
a. The choice-of-law clause
b. The forum selection clause
c. The arbitration clause
d. ‘Best efforts'
B. The Practical Realization Exception
C. When the Chosen Law of the Transaction and the Practice Limitation of the Opinion Diverge

X. The Status Opinions: Due Incorporation and Organization, Valid Existence, and Good Standing

XI. Due Authorization, Execution, and Delivery

XII. No Breach, Default, or Violation: ‘No Conflicts'

XIII. The Stock Answer to Share Status

XIV. Confirming the Absence of Litigation

XV. ‘No Violation of Law'—A Sheep in Wolf's Clothing