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    The Business Lawyer

    Fall 2022 | Volume 77, Issue 4

    Report on 2019 Survey of Law Firm Opinion Practices

    Legal Opinions Committee

    Nov 03, 2022

    64 min read

    Legal Opinions Legal Opinions & Ethics

    Summary

    • Most law firms have policies and procedures for the preparation and delivery of legal opinion letters to recipients who are not their clients.
    • This report provides an overview of the opinion practices of law firms of various sizes.
    • Responses portray certain directional tides among comparable firms, and suggest a trend toward greater formality among small firms–bringing the opinion practices of small firms into closer alignment with those of large firms.
    • However, the responses also make clear that one-size-fits-all does not come close to describing the opinion practices, either generally or with regard to specific matters, followed by law firms even of comparable size or location.
    Report on 2019 Survey of Law Firm Opinion Practices
    iStock.com/CHUNYIPWONG

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    I. Introduction

    Most law firms have policies and procedures for the preparation and delivery of legal opinion letters to recipients who are not their clients. The policies typically identify the opinions a firm is willing and unwilling to give, and the procedures establish the steps opinion preparers are expected or encouraged to take before they deliver an opinion letter on behalf of the firm. Firms often provide their lawyers with sample opinion letters and assign various responsibilities for the opinion letters their firm delivers to a committee or committees of the firm’s lawyers (an “opinion committee”).

    In 2002, the Legal Opinions Committee of the American Bar Association Business Law Section circulated a confidential survey of law firm opinion practices (the “2002 survey”). In 2010, the committee conducted another, longer survey (the “2010 survey”), and in 2019 the committee conducted a third survey (the “2019 survey”). The committee issued a report on the responses to the 2002 survey in 2004, and a report on the responses to the 2010 survey in 2013. This report describes and discusses the responses to the 2019 survey.

    The committee received about 300 responses to the 2019 survey, compared to 50 responses to the 2002 survey and 252 responses to the 2010 survey. The 2019 survey responses included information on firm size and geographic location that the committee used to analyze the survey results. The questions in the 2019 survey and a tabulation of the responses are reproduced in Appendix 1 to this report. Tables derived from those responses are included in Appendix 2.

    Firms responding to the 2019 survey ranged from small to very large and were geographically diverse. About one third indicated that they had their headquarters in either California, Massachusetts, New York, North Carolina, Pennsylvania, or Texas, with the largest percentage in New York (11 percent). While many firms had only one office, some had many, including in some cases many non-U.S. offices.

    This report provides an overview of the opinion practices of law firms of various sizes. Responses to the survey suggest a trend toward greater formality in the opinion practices of small firms, a trend that has been bringing the opinion practices of small firms into closer alignment with those of large firms. Responses also suggest that many firms of comparable size have similar opinion practices. Responses, however, portray a broad range of practices and should not be used as a basis for establishing standards, customary practice, or even best practices for opinion giving. The responses make clear that one-size-fits-all does not come close to describing the opinion practices, either generally or with regard to specific matters, followed by law firms even of comparable size or location.

    Suggestions on How to Read This Report

    The following explanations are provided to assist the reader of this report.

    Quantitative Terms. This report usually uses the following quantitative terms in referring to survey results:

    Descriptions of Quantitative Terms

    Descriptive Term

    Proportions

    Small

    1% to 9%

    Less than one quarter

    10% to 20%

    About one quarter

    21% to 29%

    About one third

    30% to 41%

    About one half

    42% to 58%

    About two thirds

    59% to 70%

    About three quarters

    71% to 80%

    More than three quarters

    81% to 90%

    Almost all

    91% to 99%


    Calculations of Proportions    . When this report or Appendix 1 states the proportion of firms that chose a particular answer to a question that asked firms to “check all that apply” from a list of possible answers, the proportion is usually calculated by dividing the number of firms that selected that answer by the number of firms that responded to that question. The “total” shown for “check all that apply” questions in Appendix 1 is usually the total number of firms that responded to the question.

    Proportions in this report and the appendices do not take into account firms that selected “no policy or established practice” or “not called for in firm's practice” from a list of permitted answers to a question. Percentages in the appendices are rounded to the nearest whole number. When this report or Appendix 2 discusses results by firm size, proportions take into account only firms that identified their firm size.

    Firm Size. In comparing survey responses of large firms with those of small firms, this report defines large firms as those with more than 200 lawyers and small firms as those with 200 or fewer lawyers.

    Summaries and Comments. Each segment of this report is preceded by a brief bold italicized summary of its conclusions. In addition, the committee has provided italicized comments following some segments.

    II. Opinion Practice Management: General

    A. Policies and Procedures for Providing Opinion Letters and Giving Particular Opinions

    Most firms had policies on whether to give particular opinions and on the content or wording of opinion letters or particular opinions. Almost all firms had procedures for providing opinion letters.

    In 2019, about three quarters of firms had policies on whether to give particular opinions or types of opinions, a substantial increase from about one half of firms that had those policies in 2010. The increase in the proportion of small firms with those policies was much larger than for large firms. However, large firms were still more likely than small firms to have those policies.

    Similarly, in 2019, about three quarters of firms had policies on the substantive content or wording of opinion letters or particular opinions. That also represented a substantial increase from 2010, particularly in the proportion of small firms.

    In 2019, almost all firms, whether large or small, had procedures for providing opinion letters, an increase from more than three quarters in 2010.

    Comments: The substantial increase from 2010 to 2019 in the proportion of firms with polices on whether to give particular opinions and the content or wording of opinions and opinion letters may have been due to (i) bar reports, other publications and programs on those topics, (ii) a greater emphasis by firms on risk management in the opinion process, and (iii) recommendations by malpractice insurers. The larger increase in the proportion of small firms with those policies and with procedures may also have been influenced by (i) an increase in the number of opinion letters they were asked to give and (ii) greater exposure to practices of larger firms. Those increases also may have been influenced by differences in the wording of the questions in the two surveys as described in notes 19 and 22.

    See infra Section III.B.2 (regarding the role of firm committees in preparing and approving firm policies and procedures).

    In addition to the opinion policies and procedures they identified in response to the 2019 survey questions, many firms also have less formal opinion practices, typically including informal consultations among firm lawyers.

    B. Policies and Procedures for Reviewing Opinion Letters of Other Firms

    Few firms had policies on the acceptability of the content or wording of proposed opinion letters of other firms or procedures for reviewing those opinion letters.

    Less than one quarter of firms had policies on the acceptability of the content or wording of opinion letters that other firms proposed to deliver to the firm's clients. About one quarter of firms had procedures for reviewing opinion letters proposed by other firms.

    Comment: Although few firms had policies on the acceptability of the content or wording of opinion letters delivered to their clients, many clients, especially financial institutions, have requirements or guidelines for their law firms to follow on the acceptability of the content and wording of opinion letters they receive.

    C. Authority to Sign or Provide Opinion Letters

    Most firms permitted only partners to sign or provide opinion letters.

    More than three quarters of firms permitted only partners or lawyers with equivalent status to sign or provide opinion letters. Textual comments indicated that some firms (i) permitted non-partners to sign if authorized by an appropriate procedure (e.g., approval by an opinion committee or a member of an opinion committee) or (ii) required a signature or approval by a specific partner or a partner having a particular position within the firm.

    III. Opinion Practice Management: Committees

    A. Existence and Number of Committees

    Most firms had at least one opinion committee. Since 2010, the proportion of small firms with opinion committees increased substantially.

    About three quarters of firms in the 2019 survey had at least one opinion committee, a proportion little changed since 2002. As was true in 2010, almost all large firms had an opinion committee. However, the proportion of small firms with an opinion committee increased substantially, from about one half in 2010 to about two thirds in 2019. Less than one quarter of firms, about three quarters of them large, had more than one opinion committee.

    Comment: The increase from 2010 to 2019 in the proportion of small firms with an opinion committee illustrates a trend toward greater formality in the opinion practice of small firms mentioned in the Introduction. Presumably, large firms that have established more than one committee have done so to accommodate the complexity of their firm structures, e.g., multiple practice groups or offices in different states and countries.

    B. Committee Functions

    (1) Reviewing, Clearing, or Approving Individual Opinion Letters

    In most firms, opinion committees or their members reviewed, cleared, or approved at least some opinion letters. This was particularly true for small firms.

    In about two thirds of large firms and almost all small firms, the firm’s opinion committee(s), acting as a committee or through individual members, reviewed, cleared, or approved opinion letters. For about two thirds of those committees, any member could review, clear, or approve opinion letters.

    About three quarters of opinion committees that reviewed, cleared, or approved opinion letters did so for substantially all opinion letters. The balance did so for opinion letters for some but not all transactions.

    (2) Preparing or Approving Firm Opinion Policies and Procedures

    Most opinion committees, including almost all opinion committees in large firms, prepared or approved opinion policies and procedures for all firm practice groups and offices, in many cases consulting with or obtaining approval of others in the firm.

    The opinion committees of more than three quarters of firms prepared or approved firm opinion policies or procedures, including almost all large firm opinion committees and about three quarters of small firm opinion committees. The largest number, about two thirds of those firms, indicated that the full committee acted in this area; about one quarter said that the committee chair acted for the committee. More than three quarters of firms with opinion committees exercising these functions said that policies or procedures prepared or approved by their opinion committees related to opinion letters delivered by all their practice groups and offices.

    About one half of opinion committees preparing or approving policies or procedures usually obtained approval of or consulted with another person or group when taking that action; less than another one quarter said they did so depending on the circumstances. Opinion committees most frequently obtained approval of or consulted with designated members of designated practice groups or the firm’s general counsel (each in about one third of the opinion committees).

    (3) Administering, Monitoring, or Waiving Compliance with Policies or Procedures

    Most opinion committees administered, monitored, or waived firm policies and/or procedures for all practice groups and offices, in some cases consulting with or obtaining approval of others in the firm.

    The opinion committees of about three quarters of both large and small firms administered, monitored, or waived compliance with firm opinion policies or procedures. In contrast to the results of the earlier question on preparing or approving opinion policies and procedures, the largest number of firms (about one half ) said that any committee member could act for the committee for this purpose. About one third of firms selected the opinion committee chair, and about one quarter selected either any two or more committee members acting together or the full committee.

    Only about one third of the opinion committees administering, monitoring, or waiving compliance with firm opinion policies or procedures usually consulted with or obtained the approval of another person or group; another less than one quarter did so depending on the circumstances. The opinion committees that consulted with or obtained the approval of another person or group did so most frequently with a designated member of a designated practice group (about one half ), any member of a designated practice group (about one third), or the firm’s general counsel (about one third).

    More than three quarters of firms whose committees performed this function said that policies or procedures relating to administering, monitoring, or waiving compliance by their opinion committees applied to opinion letters delivered by all their practice groups and offices.

    Comments: Opinion committees most often acted as a full committee when preparing or approving their firm’s policies or procedures (see supra Section II.B.2) but through individual committee members when monitoring or waiving compliance with those policies and procedures. That may be explained in part by the need to act promptly on an issue raised by a particular opinion letter or the need for a waiver when an issue is identified during review of an individual opinion letter by an opinion committee member.

    Likely for the same reasons, less consultation with or approval of others was required for this function than for preparing or approving policies and procedures.

    (4) Preparing or Approving Sample Opinions, Opinion Letters, Supporting Documentation, or Other Materials

    Most opinion committees prepared or approved sample opinions, opinion letters, supporting documentation, or other materials.

    More than three quarters of large firms and about three quarters of small firms said that their opinion committees prepared or approved sample opinions, opinion letters, supporting documentation, or other materials. About one half of those firms said that the full opinion committee acted for this purpose, and about one third said that the opinion committee chair acted for the committee.

    About one third of opinion committees that prepared or approved samples usually obtained approval of or consulted with another person or group in taking that action, with approval or consultation most frequently provided by a designated member of a designated practice group (about two thirds of those committees), any partner or equivalent of a designated practice group (about one third), or the firm’s general counsel (about one third).

    (5) Conducting or Overseeing Education or Training of Lawyers on Opinion Matters

    Most opinion committees conducted or oversaw opinion education or training.

    About three quarters of firms said that their opinion committees conducted or oversaw education or training of their lawyers on opinion matters.

    (6) Other Committee Functions

    Most opinion committees did not perform other functions.

    More than three quarters of firms said that their opinion committees did not perform functions other than those addressed by the questions discussed above. In comments, many of the remaining firms described other functions their opinion committees performed.

    C. Committee Membership

    In most firms, firm management selected opinion committee members. Those members almost always were partners and usually were business lawyers.

    When firms were asked to identify who selected members of their opinion committees by choosing all that applied from a list, about two thirds of firms, regardless of size, chose their firm’s management or management committee. About one quarter of firms chose the opinion committee chair, and less than one quarter practice groups or the opinion committee itself.

    Almost all firms said that the members of their opinion committees typically were partners or the equivalent. More than three quarters said that each member typically was a business lawyer. When asked to identify from a list the types of lawyers currently serving on their opinion committees, the largest number of firms selected a lawyer expert in opinion practice (about three quarters) or a real estate lawyer (about two thirds).

    IV. Opinion Practice Management: Consultation

    A. Existence and Application of Review Practices

    Most firms required or expected opinion preparers to consult with or obtain approval from a consulted lawyer before delivering an opinion letter.

    More than three quarters of firms had a policy or practice regarding opinion preparers’ consulting with or obtaining approval from a consulted lawyer (a “consultation”) before delivering an opinion letter. About three quarters of those firms required or expected a consultation for all or substantially all opinion letters, with another 10 percent requiring or expecting it for some opinion letters. The balance only encouraged a consultation for all or substantially all or for some opinion letters. Almost all firms applied their consultation practice to all offices and practice groups.

    The relatively few firms whose consultation policy applied to only some opinion letters were asked to select all that applied from a list of circumstances calling for a consultation. The circumstances selected most frequently, by about three quarters of those firms, were (i) the opinion letter or particular opinions were significantly different from the firm’s form, sample, or model, (ii) the opinion letter covered a matter requiring expertise not possessed by the opinion preparers, (iii) the opinion letter presented issues that are not straightforward, not easily resolved, or not previously addressed by the firm, or (iv) the opinion letter was not routine.

    Almost all firms with a consultation policy said that exceptions were rarely, if ever, made.

    Comment: Consultation with another lawyer before an opinion letter is delivered continues to be the prevailing practice of law firms

    B. Consulted Lawyers

    The lawyers eligible to serve as consulted lawyers were almost always partners and usually were members of an opinion committee. Typically, the opinion preparers could select the consulted lawyer from among those eligible.

    Almost all firms with a consultation policy called for the consulted lawyer to be a partner or equivalent. However, some firms (less than one quarter) permitted exceptions.

    When asked to identify all that applied from a list of those who could serve as consulted lawyers, the largest number of firms selected (i) any member of an opinion committee (about two thirds), (ii) a lawyer with expertise in at least one of the legal areas addressed by the opinion letter (about one third), (iii) any partner or equivalent in the firm (about one third), (iv) a designated member or other designee of an opinion committee (about one quarter), (v) an entire opinion committee (about one quarter), or (vi) both a committee or a member or designee of a committee and a lawyer with such expertise (about one quarter). Usually, opinion preparers were permitted to select the consulted lawyer from among those eligible to serve in that capacity.

    About one half of large firms and about two thirds of small firms said that they did not prohibit the consulted lawyer from being otherwise involved in the transaction. More than three quarters of firms did not prohibit the consulted lawyer from being otherwise involved with the client.

    Comment: The question in the 2019 survey regarding the involvement of the consulted lawyer in the transaction did not address the extent of that involvement. Therefore, the fact that two thirds of firms responding to the question said that they did not prohibit the consulted lawyer from being otherwise involved in the transaction does not mean that lawyers selected as consulted lawyers often were involved in the transaction or that the extent of a lawyer’s involvement in the transaction was not a negative factor in the selection of a consulted lawyer.

    C. Responsibilities of the Consulted Lawyer

    Responsibilities of consulted lawyers were primarily to identify issues raised by an opinion letter and to serve as a resource for the opinion preparers.

    When asked to select all that applied from a list of possible responsibilities of the consulted lawyer, about three quarters of firms and in some cases more selected (i) answer questions of the opinion preparers, (ii) determine whether the opinion letter raises special concerns, (iii) identify issues on the face of the opinion letter, (iv) determine that the form of the opinion letter satisfies the firm’s policy or practice, (v) be satisfied about the substance of matters within the consulted lawyer’s expertise, and (vi) be satisfied about matters determined by the consulted lawyer or opinion preparers to require special attention. About one half of firms indicated that the role of the consulted lawyer was to sign off on delivery of the opinion letter, and about one third said that the consulted lawyer’s role was to determine whether any special procedures were required. Only about one quarter called for the consulted lawyer to (i) review backup documentation or otherwise determine that sufficient work had been done to support the opinions being given, or (ii) concur in the opinion letter as if the consulted lawyer had prepared the opinion letter.

    D. When Does Consultation Occur?

    Most firms did not have a policy or practice about the timing of a consultation. About half of those that did called for it to take place before a draft opinion letter was provided to the opinion recipient or its counsel.

    About two thirds of firms said they did not have a policy or practice on when the consulted lawyer should first be consulted. Of those firms that had a policy or practice, about one half called for a consultation to occur before a draft of the opinion letter was provided to the opinion recipient or its counsel, and less than one quarter called for a consultation to occur when the need for the opinion letter was identified. Only about one quarter of firms called for a follow-up consultation before the opinion letter was delivered.

    E. Memorializing Consultation

    Most firms did not memorialize the consultation.

    Only about one third of firms called for the consultation to be memorialized. A consultation was typically memorialized by a notation on an internal copy of the opinion letter or by a memo to the firm’s opinion letter file or transaction file.

    V. Opinion Practice Management: Samples

    A. Sample Opinion Letters and Opinions

    Most firms made available to their lawyers one or more sample opinion letters or opinions. Although typically permitting exceptions, about half required or expected use of the samples as a starting point in the preparation of the opinion letters, a substantial increase since 2010.

    More than three quarters of firms made available to their lawyers sample opinion letters or sample opinions. Typically, those samples were prepared or approved by (i) an opinion committee, (ii) members or designees of an opinion committee, or (iii) a lawyer or lawyers in one or more designated practice groups or with specialized expertise.

    About one half of firms with sample opinion letters or sample opinions required or expected their use as a starting point in the preparation of opinion letters, representing a substantial increase from 2010. In 2019, about one third encouraged their use as a starting point but did not require or expect it. More than three quarters of firms that required or expected use of sample opinion letters or sample opinions permitted exceptions, most frequently exceptions that were approved by an opinion committee, the chair or another member of an opinion committee, or the consulted lawyer.

    B. Sample Supporting Documentation

    About one half of firms called for a supporting memo or checklist for at least some of their opinion letters.

    About one half of firms required, expected, or encouraged preparation of a supporting memo, check­list, or similar supporting documentation for at least some opinion letters, an increase from about one third in 2010. About two thirds of firms that answered the question had one or more forms or samples of supporting documentation, up from about one third in 2010.

    VI. Education

    Most firms routinely offered training or education to their lawyers on opinion matters, using a variety of techniques. Opinion committees or their members or designees often had that responsibility. Many firms, most of them large, offered internal seminars or presentations and required or expected attendance by at least some lawyers, usually associates.

    When firms were asked to choose all that applied from a list of types of training or education they routinely provided their lawyers on opinion matters, the answer most frequently chosen was encouragement of lawyers to review or use treatises, bar reports, form or sample opinion letters or opinions, or other resources made available to them by the firm (about two thirds of both large and small firms). About one half of firms chose (i) discuss opinion topics at practice group or similar meetings (about two thirds of large firms and about one half of small firms), (ii) offer internal seminars or presentations (about two thirds of large firms and about one third of small firms), and (iii) distribute memoranda, newsletters, or other opinion-related materials produced outside the firm (about one half of both large and small firms). Less than one quarter of firms said they did not offer any of the listed methods of training or education.

    About one half of firms that offered internal seminars or presentations required or expected (and not just encouraged) at least some lawyers to participate in or attend them. When asked to describe which lawyers were required or expected to participate or attend, the group most frequently identified was associates. Of firms that advised their lawyers of programs given by outside providers, about three quarters did not require or expect lawyers to attend.

    Firms were asked to choose all that applied from a list of who was responsible for education or training. The answers most frequently selected, each by about one half of firms, were (i) members or designees of an opinion committee, (ii) an opinion committee or committees, and (iii) one or more partners with transactional practices involving opinion letters. About one third of firms selected a lawyer or lawyers in one or more designated practice groups. A small number of firms, mostly large, had a separate internal education committee. A few firms mentioned other responsible parties, for example, the firm’s general counsel or practice groups.

    VII. Limitations on Opinions and Confirmations

    A. Opinions on Law of Another State

    (1) Delaware Opinions

    Almost all non-Delaware firms gave routine opinions on the status, power, and authority of Delaware corporations and limited liability companies, and most gave them on Delaware limited partnerships. Most non-Delaware firms also gave opinions on the issuance of equity interests by those Delaware entities. About one half of non-Delaware firms gave opinions on the limited liability of members of Delaware limited liability companies and limited partners of limited partnerships. More large firms gave those opinions than small firms.

    Only a small number of responding firms had an office in Delaware that gave, or advised opinion preparers in other firm offices on, opinions on Delaware law.

    Almost all firms without an office in Delaware gave routine opinions―i.e., opinions not involving novel or complex legal issues―without consulting Delaware counsel on the entity status and power of, and authorization of specified actions by, Delaware corporations and limited liability companies (“LLCs”); and more than three quarters gave those opinions on Delaware limited partnerships. The proportion of firms, particularly small firms, that gave the foregoing opinions increased since 2010.

    About three quarters of non-Delaware firms gave routine opinions without consulting Delaware counsel on the issuance of stock of Delaware corporations, membership interests in Delaware LLCs, and partnership interests in Delaware limited partnerships.

    About one half of both large and small non-Delaware firms gave routine opinions without consulting Delaware counsel on the limited liability of members of Delaware LLCs and limited partners of Delaware limited partnerships.

    Firms described numerous and varied limitations on giving the above opinions. For example, some firms had special procedures for opinions on the limited liability of members of LLCs or limited partners of limited partnerships or for determining whether to involve Delaware counsel. Several firms commented that they limited their opinions on Delaware business entities to the relevant Delaware statutes without covering Delaware judicial decisions interpreting those statutes.

    Comment: The practice of non-Delaware firms giving routine opinions on Delaware business entities is not surprising in light of the widespread use of Delaware business entities in transactions on which closing opinions are delivered and the familiarity of non-Delaware lawyers with the legal issues underlying routine opinions.

    (2) Other States

    Few firms without an office in a state gave opinions on that state’s entity law (other than Delaware’s) or that state’s contract law.

    Few firms without an office in a state gave opinions on the entity law of that state (other than the entity law of Delaware). That was true for the corporation laws of Nevada and Maryland, two states where out-of-state businesses are sometimes incorporated.

    Except for New York contract law, less than one quarter of firms said they gave opinions on the contract law of states (including Delaware) in which they did not have an office without consulting local counsel. Responses to a question regarding the giving of opinions on New York contract law by firms without an office in New York were not reliable enough to draw any conclusions about whether non-New York firms gave opinions on New York contract law without consulting New York counsel.

    About two thirds of firms, both large and small, said that, when they gave an opinion on the law of a state (other than Delaware) in which the firm did not have an office, the opinion typically was reviewed by a lawyer in the firm who was licensed or practiced in the state whose law was covered by the opinion.

    (3) UCC Opinions

    Most firms gave opinions without consulting local counsel on Article 9 of the UCC of a state or states in which they did not have an office. About one half also gave those opinions without consulting local counsel on Article 8 of the UCC.

    About three quarters of firms gave opinions without consulting local counsel on Article 9 of the Uniform Commercial Code (the “UCC”) of a state or states in which the firm did not have an office. About one half of firms also gave those opinions without consulting local counsel on Article 8 of the UCC. Some firms that gave those opinions commented that they gave them only on the Delaware UCC or did not cover case law.

    Comments: The form of the question did not permit firms to indicate whether they gave opinions generally on the UCCs of other states or only on Articles 8 and 9 of the UCCs of one or a few states. Several firms commented that they gave opinions only on Articles 8 and 9 of the Delaware UCC.

    Perfection of a security interest by filing usually is governed by the UCC of the state under whose laws the entity granting the security interest is organized. Many business entities organized under Delaware law have headquarters and operations in other states. Firms that otherwise do not give opinions on the UCC of other states often give them on Articles 8 and 9 of the Delaware UCC, presumably because the UCC is highly uniform from state to state and these opinions are called for with sufficient frequency to justify maintaining competence with respect to Delaware’s Articles 8 and 9.

    Many firms expressly base their Article 8 and 9 opinions on a publicly available compilation of the UCC as adopted in each state.

    B. No-Litigation Confirmations

    Most firms gave no-litigation confirmations, but many resisted giving them and when they gave them limited their scope.

    About three quarters of firms gave confirmations regarding the absence of legal proceedings (“no-litigation confirmations”) against the client on whose behalf they were delivering an opinion letter. However, many of those firms resisted giving no-litigation confirmations, and about half gave them only sometimes.

    Almost all firms that gave no-litigation confirmations covered pending legal proceedings. About half also covered legal proceedings threatened in writing, but only a small number covered legal proceedings threatened orally.

    About two thirds of firms limited their no-litigation confirmations to proceedings about which their firm or specified firm lawyers had knowledge. About one half limited their no-litigation confirmations to proceedings in which their firm represented the client, and about one half to proceedings that could adversely affect the transaction. Only about one quarter of firms limited their opinions to proceedings that could adversely affect the client.

    Comments: Many firms described their reluctance to give no-litigation confirmations in responding to both the 2010 and 2019 surveys. This reluctance may be attributable to a general aversion to providing factual rather than legal conclusions and court decisions holding against firms that gave no-litigation confirmations.

    The questions did not ask whether firms limited their no-litigation confirmations to “material” legal proceedings.

    Firms that did not include a knowledge qualifier may have done so because they limited their no-litigation confirmations to legal proceedings that could adversely affect the transaction or in which the firm represented the client. In the case of a legal proceedings that could adversely affect the transaction, the proceeding would normally be known to the opinion preparers and, in the case of a legal proceeding in which the firm is representing the client, the proceeding could be readily identified by the opinion preparers by a review of the firm’s litigation docket for the client.

    C. Other Limitations

    In giving no breach or default opinions, most firms expressly covered only agreements identified in a list and did not regularly cover financial covenants in those agreements. Most firms did not give enforceability opinions covering arbitration clauses in agreements in domestic U.S. transactions.

    (1) No Breach or Default Opinions

    About two thirds of firms, including three quarters of large firms, expressly limited the agreements covered by no breach or default opinions to agreements identified in a specified list. The remaining one third of firms, mostly small firms, expressly limited the agreements covered to agreements known to their firm.

    More than three quarters of large and small firms said that they did not regularly cover breaches of financial covenants.

    Comments: At least one bar association has taken the position that no breach or default opinions do not cover financial covenants unless they do so expressly. Because the question in the survey regarding coverage of financial covenants did not ask whether firms expressly excluded financial covenants from the opinion’s coverage, responses do not permit a conclusion as to how often firms that said they did not cover financial covenants excluded coverage expressly. Also, because the question asked whether firms “regularly” covered financial covenants, responses do not permit a conclusion as to how often firms that responded that they did not regularly cover financial covenants nonetheless sometimes covered them.

    Some firms that responded “no policy or established practice” to the question about financial covenants or enforceability of arbitration clauses might have done so because they did not often receive requests for those opinions or had not adopted a position regarding coverage of those covenants or clauses. However, that selection also could simply mean that in the absence of a policy or practice their lawyers were free to give those opinions.

    (2) Enforceability of Arbitration Clauses

    About two thirds of large and small firms did not regularly cover the enforceability of provisions requiring arbitration in agreements in domestic U.S. transactions.

    VIII. Archives

    About one half of firms maintained a file or archive of opinion letters they had delivered, but few maintained a file or archive of opinion letters delivered to their clients by other firms.

    About one half of firms maintained a file or archive of opinion letters delivered by their firm, but less than one quarter maintained a file or archive of opinion letters delivered by other firms. About one half of firms that maintained a file or archive used an electronic index or search tool to retrieve information from it.

    IX. Conclusion

    Like the 2002 and 2010 surveys, the 2019 survey revealed a broad range of approaches to opinion practice. Although the 2019 survey indicated some significant differences, the practices of large and small firms were for the most part closer in 2019 than in 2010. The Committee thanks the many firms that participated in the 2019 survey and is hopeful that the results will be helpful to firms in designing and administering their opinion practices.

    Appendix 1

    NOTE: All percentages in this Appendix are rounded to the nearest whole number.

    Percentages do not take into account firms that selected “no policy or established practice” or “not called for in firm’s practice” from a list of permitted answers to a question. The number of firms that selected that answer is subtracted from the total number of firms that responded to the question before making calculations of percentages.

    As is true for all questions, percentages for questions that call for firms to “check all that apply” from a list of possible answers are reported for each selected answer separately. Those percentages are usually calculated by dividing the total number of firms that selected each answer by the number of firms that responded to that question. In this Appendix, that total is shown as the “total” for the question, and is less than the sum of firm answers in the column above the total if any firm selected more than one answer.

    I. Firm Opinion Practice Management Generally

    A. Procedures and Policies for Providing Opinion Letters, Giving Particular Opinions, and Reviewing Opinion Letters Proposed by Other Firms

    1. Does your Firm have: (Please check all that apply.)

    - Procedures for providing Opinion Letters

    279

    97%

    - Policies on whether to give particular Opinions or types of Opinions

    226

    79%

    - Policies on the substantive content or wording of your firm’s Opinion Letters or particular Opinions

    216

    75%

    - Procedures for reviewing Opinion Letters of other law firms addressed to your firm’s clients as part of transactions

    67

    23%

    - Policies on the substantive content or wording of Opinion Letters of other law firms addressed to your firm’s clients

    31

    11%

    Total

    288

    		  

    B. Authority to Sign or Provide Opinion Letters

    2. Which lawyers in your firm are permitted to sign or provide Opinion Letters? (Please check all that apply.)

    - Partners or lawyers with equivalent status

    302

    97%

    - Associates or lawyers with equivalent status

    7

    2%

    - Lawyers designated “special counsel,” “of counsel,” “senior counsel,” or the like

    30

    10%

    - It depends (Please explain.)

    21

    7%

    - Other (Please explain.)

    12

    4%

    Total

    312

    		  

    II. Opinion Practice Management: Committees

    A. Existence and Number of Committees

    3. How many opinion committees does your firm have? (Please check only one.)

    - None

    70

    23%

    - One

    199

    65%

    - More Than One

    38

    12%

    Total

    307

    		  


    3.1 How is responsibility allocated among your firm’s various opinion committees? (Please check all that apply.)

    - By practice group or area of law

    28

    76%

    - By geography (e.g., by office location)

    9

    24%

    - By function (e.g., one committee (or its members)
    approves opinion policies and another (or its members)
    reviews Opinion Letters to be provided by your firm)

    7

    19%

    - Other (Please describe.)

    7

    19%

    Total

    37

    		  

    B. Committee Functions

    (1) Reviewing, Clearing, or Approving Opinion Letters

    4. Does/do your firm’s opinion committee(s) (including action by committee members) review, clear, or approve individual Opinion Letters to be provided by your firm?

    - Yes

    192

    81%

    - No

    46

    19%

    Total

    238

    		  


    4.1 Which of the following better describes what your firm’s opinion committee or committees do (or what members do on behalf of the committee or committees)? (Please check only one answer.)

    - Review, clear, or approve all or substantially all Opinion Letters

    144

    77%

    - Review, clear, or approve some (but not all or substantially all) Opinion Letters

    44

    23%

    Total

    188

    		  


    4.1.1 Which of the following act for your firm’s opinion committee or committees in taking this action? (Please check all that apply.)

    - The full committee

    14

    10%

    - One or more subcommittees

    2

    1%

    - Any committee member

    97

    68%

    - The committee chair

    13

    9%

    - A designated committee member (other than the chair)

    9

    6%

    - Two or more committee members, acting together

    24

    17%

    - Other (Please describe.)

    19

    13%

    Total

    143

    		  


    4.1.2 Which of the following act for your firm’s opinion committee or committees in taking this action? (Please check all that apply.)

    - The full committee

    7

    16%

    - One or more subcommittees

    5

    11%

    - Any committee member

    34

    77%

    - The committee chair

    11

    25%

    - A designated committee member (other than the chair)

    6

    14%

    - Two or more committee members, acting together

    2

    5%

    - Other (Please describe.)

    2

    5%

    Total

    44

    		  


    4.1.3 Opinion Letters that are reviewed, cleared, or approved typically relate to which of the following practice areas? (Please check all that apply.)

    - Public securities offerings (debt or equity)

    22

    50%

    - Private securities offerings (debt or equity including, e.g., private equity & venture capital)

    25

    57%

    - Lending

    38

    82%

    - Securitizations

    19

    43%

    - Substantive consolidation or true sales

    19

    43%

    - Mergers and acquisitions

    23

    52%

    - Other (Please describe.)

    7

    16%

    Total

    44

    		  


    (2) Preparing or Approving Firm Policies and Procedures

    5. Does/do your firm’s opinion committee(s) (including actions by committee members) prepare or approve firm opinion policies or procedures?

    - Yes

    201

    86%

    - No

    33

    14%

    Total

    234

    		  


    5.1 Which of the following act for your firm’s opinion committee or committees in taking this action? (Please check all that apply.)

    - The full committee

    115

    59%

    - One or more subcommittees

    17

    9%

    - Any committee member

    39

    20%

    - The committee chair

    48

    25%

    - A designated committee member (other than the chair)

    15

    8%

    - Two or more committee members, acting together

    27

    14%

    - Other (Please describe.)

    9

    5%

    Total

    195

    		  


    5.2 Which of the following best describes your firm’s practices in taking this action?

    - Your firm’s opinion committee(s) usually obtains the approval of or consults with another person or group in taking this action

    90

    47%

    - Your firm’s opinion committee(s) usually does not obtain the approval of or consult with another person or group in taking this action

    73

    38%

    - It depends (Please explain.)

    30

    16%

    Total

    193

    		  


    5.2.1 Who consults or approves? (Please check all that apply.)

    - The firm’s general counsel

    42

    35%

    - One or more designated members of a designated practice group or groups

    46

    39%

    - Any partner (or equivalent) of a designated practice group or groups

    29

    24%

    - The firm’s management committee

    30

    25%

    - The firm’s managing partner

    20

    17%

    - It depends (Please explain.)

    18

    15%

    Total

    119

    		  


    5.3 As a general matter, do firm opinion policies or procedures relating to preparation or approval of Opinion Letters by the opinion committee or committees relate to Opinion Letters covered by this survey delivered by all of your firm’s practice groups?

    - Yes

    161

    83%

    - No (Please list practice groups that deliver Opinion Letters of the types covered by this survey that are not dealt with by your firm’s opinion committee or committees.)

    33

    17%

    Total

    194

    		  


    5.4 As a general matter, do firm opinion policies or procedures relating to preparation or approval of Opinion Letters by the opinion committee or committees relate to Opinion Letters covered by this survey delivered by all of your firm’s offices?

    - Yes

    175

    90%

    - No (Please list offices that deliver Opinion Letters of the types covered by this survey that are not dealt with by your firm’s opinion committee or committees.)

    20

    10%

    Total

    195

    		  


    (3) Administering, Monitoring, or Waiving Compliance with Policies or Procedures

    6. Does/do your firm’s opinion committee(s) (including actions by committee members) administer, monitor, or waive compliance with firm opinion policies or procedures?

    - Yes

    183

    79%

    - No

    48

    21%

    Total

    231

    		  


    6.1 Which of the following act for your firm’s opinion committee or committees in taking this action? (Please check all that apply.)

    - The full committee

    46

    26%

    - One or more subcommittees

    10

    6%

    - Any committee member

    86

    48%

    - The committee chair

    56

    31%

    - A designated committee member (other than the chair)

    13

    7%

    - Two or more committee members, acting together

    43

    26%

    - Other (Please describe.)

    16

    9%

    Total

    178

    		  


    6.2 Which of the following best describes your firm’s practices in taking this action?

    - Your firm’s opinion committee(s) usually obtains the approval of or consults with another person or group in taking this action

    66

    38%

    - Your firm’s opinion committee(s) usually does not obtain the approval of or consult with another person or group in taking this action

    86

    49%

    - It depends (Please explain.)

    23

    13%

    Total

    175

    		  


    6.2.1 Who consults or approves? (Please check all that apply.)

    - The firm’s general counsel

    32

    36%

    - One or more designated members of a designated practice group or groups

    40

    46%

    - Any partner (or equivalent) of a designated practice group or groups

    28

    32%

    - The firm’s management committee

    9

    10%

    - The firm’s managing partner

    11

    13%

    - It depends (Please explain.)

    15

    17%

    Total

    		  

    88


    6.3 As a general matter, do firm opinion policies or procedures relating to administering, monitoring, or waiving compliance by the opinion committee or committees relate to Opinion Letters covered by this survey delivered by all of your firm’s practice groups?

    - Yes

    151

    86%

    - No (Please list practice groups that deliver Opinion Letters of the types covered by this survey that are not dealt with by your firm’s opinion committee or committees.)

    25

    14%

    Total

    176

    		  


    6.4 As a general matter, do firm opinion policies or procedures relating to administering, monitoring, or waiving compliance by the opinion committee or committees relate to Opinion Letters of the types covered by this survey that are delivered by all of your firm’s offices?

    - Yes

    150

    91%

    - No (Please list offices that deliver Opinion Letters of the types covered by this survey that are not dealt with by your firm’s opinion committee or committees.)

    15

    9%

    Total

    165

    		  


    (4) Preparing or Approving Form, Sample, or Model Opinions, Opinion Letters, Supporting Documentation, or Other Materials

    7. Does/do your firm’s opinion committee(s) (including actions by committee members) prepare or approve forms, samples, or model Opinions, Opinion Letters, supporting documentation, or other materials?

    - Yes

    186

    82%

    - No

    41

    18%

    Total

    227

    		  


    7.1 Which of the following act for your firm’s opinion committee or committees in taking this action? (Please check all that apply.)

    - The full committee

    90

    50%

    - One or more subcommittees

    26

    14%

    - Any committee member

    44

    24%

    - The committee chair

    55

    30%

    - A designated committee member (other than the chair)

    22

    12%

    - Two or more committee members, acting together

    34

    19%

    - Other (Please describe.)

    8

    4%

    Total

    182

    		  


    7.2 Which of the following best describes your firm’s practices in taking this action?

    - Your firm’s opinion committee(s) usually obtains the approval of or consults with another person or group in taking this action

    61

    34%

    - Your firm’s opinion committee(s) usually does not obtain the approval of or consult with another person or group in taking this action

    109

    60%

    - It depends (Please explain.)

    12

    7%

    Total

    182

    		  


    7.2.1 Who consults or approves? (Please check all that apply.)

    - The firm’s general counsel

    22

    30%

    - One or more designated members of a designated practice group or groups

    43

    59%

    - Any partner (or equivalent) of a designated practice group or groups

    22

    30%

    - The firm’s management committee

    8

    11%

    - The firm’s managing partner

    10

    14%

    - It depends (Please explain.)

    12

    16%

    Total

    73

    		  


    (5) Conducting or Overseeing Education or Training of Lawyers on Opinion Matters

    8. Does/do your firm’s opinion committee(s) (including actions by committee members) conduct or oversee education or training of your firm’s lawyers on opinion matters?

    - Yes

    168

    75%

    - No

    57

    25%

    Total

    225

    		  


    (6) Other Committee Functions

    9. Does/do your firm’s opinion committee(s) (including actions by committee members) perform any other functions not covered by earlier questions?

    - Yes

    37

    16%

    - No

    188

    84%

    Total

    225

    		  


    C. Committee Membership

    10. How are members of your firm’s opinion committee or committees appointed? (Please check all that apply.)

    - By firm management or management committee

    145

    64%

    - By firm general counsel

    12

    5%

    - By practice groups

    42

    19%

    - By opinion committee chair

    50

    22%

    - By the committee itself

    42

    19%

    - It depends on the committee (Please explain.)

    6

    3%

    - Other (Please describe.)

    14

    6%

    Total

    226

    		  


    11. Is each committee member typically a partner (or equivalent) in your firm?

    - Yes

    179

    80%

    - Yes, with limited exceptions (Please describe.)

    40

    18%

    - No (Please describe who else can be a committee member.)

    5

    2%

    Total

    224

    		  


    12. Is each committee member typically a business lawyer?

    - Yes

    165

    74%

    - Yes, with limited exceptions (Please explain.)

    36

    16%

    - No

    22

    10%

    Total

    223

    		  


    13. Do any of your firm’s opinion committees currently have as a member: (Please check all that apply.)

    - A litigator

    55

    26%

    - A bankruptcy lawyer

    74

    34%

    - A tax lawyer

    88

    41%

    - An IP lawyer

    25

    12%

    - A real estate lawyer

    152

    70%

    - A lawyer expert in opinion practice

    165

    76%

    - A representative of one or more designated practice groups

    99

    46%

    - Your firm’s general counsel

    45

    21%

    - A representative of the firm’s client intake committee

    9

    4%

    - Another person from firm management (Please identify.)

    19

    9%

    Total

    216

    		  


    III. Firm Opinion Practice Management: Consultation

    14. Does your firm have a policy or practice regarding Opinion Preparers consulting with or obtaining approval by another lawyer or lawyers (the “Consulted Lawyer”) before providing an Opinion Letter? (Note: The Consulted Lawyer could be a firm opinion committee(s) or one or more members thereof.)

    - Yes

    245

    83%

    - No

    49

    17%

    Total

    294

    		  


    15. As a general matter, which of the following best describes your firm’s policy or practice regarding consultation or approval?

    Consultation or approval is called for:

    - Usually, with some exceptions

    90

    37%

    - Only in particular cases

    30

    12%

    - Always

    122

    50%

    Total

    242

    		  


    16. As a general matter, does your firm’s policy or practice regarding consultation or approval apply to all of your firm’s practice groups and offices that give Opinions of types covered by this survey?

    - Yes

    219

    91%

    - No (Please explain.)

    23

    10%

    Total

    242

    		  


    17. Do the details of the policy or practice vary from practice group to practice group, or from office to office?

    - Yes (Please explain.)

    53

    22%

    - No

    187

    78%

    Total

    240

    		  


    18. Which of the following best describes your firm’s policy or practice regarding consultation or approval? (Please check only one box.)

    - (a1) Opinion Preparers are required or expected to consult or seek approval regarding all or substantially all Opinion Letters

    188

    78%

    - (a2) Opinion Preparers are required or expected to consult or seek approval regarding some (but not substantially all) Opinion Letters

    24

    10%

    - (b1) Opinion Preparers are encouraged (but not required or expected) to consult or seek approval regarding all or substantially all Opinion Letters

    18

    7%

    - (b2) Opinion Preparers are encouraged (but not required or expected) to consult or seek approval regarding some (but not substantially all) Opinion Letters

    12

    5%

    Total

    242

    		  


    18.1 In what situations is consultation or approval called for? (Please check all numbered items that apply.)

    - The Opinion Letter or particular Opinions are significantly different from your firm’s form, sample, or model

    20

    83%

    - Delivering the Opinion Letter poses unusual risks because of the size of the transaction

    15

    63%

    - Delivering the Opinion Letter poses unusual risks because of the nature of the transaction

    17

    74%

    - The Opinion Letter presents issues that are not straightforward, not easily resolved, or not previously addressed by your firm

    18

    75%

    - Only one partner or equivalent is working on the transaction

    6

    25%

    - The Opinion Letter is not routine (For example, it is not a type your firm often provides or is not being given as a repeat Opinion Letter in a series of closings in the same transaction for the same client.)

    18

    75%

    - The Opinion Letter covers a matter requiring expertise not possessed by Opinion Preparers (For example, the Uniform Commercial Code, the federal securities laws, or the law of a particular state.)

    20

    83%

    - Other (Please explain.)

    0

    0%

    - Your firm’s policies are not specific (Please explain.)

    1

    4%

    - Total

    24

    		  


    18.2 In what situations is consultation or approval called for? (Please check all numbered items that apply.)

    - The Opinion Letter or particular Opinions are significantly different from your firm’s form, sample, or model

    9

    75%

    - Delivering the Opinion Letter poses unusual risks because of the size of the transaction

    5

    42%

    - Delivering the Opinion Letter poses unusual risks because of the nature of the transaction

    7

    58%

    - The Opinion Letter presents issues that are not straightforward, not easily resolved, or not previously addressed by your firm

    10

    83%

    - Only one partner or equivalent is working on the transaction

    1

    8%

    - The Opinion Letter is not routine (For example, it is not a type your firm often provides or is not being given as a repeat Opinion Letter in a series of closings in the same transaction for the same client.)

    11

    92%

    - The Opinion Letter covers a matter requiring expertise not possessed by Opinion Preparers (For example, the Uniform Commercial Code, the federal securities laws, or the law of a particular state.)

    9

    75%

    - Other (Please explain.)

    1

    8%

    - Your firm’s policies are not specific (Please explain.)

    1

    8%

    - Total

    12

    		  


    19. Which of the following best describes your firm’s practice regarding exceptions to your firm’s policy or practice requiring or expecting consultation?

    - Exceptions are never made

    80

    36%

    - Exceptions are rarely made

    124

    55%

    - Exceptions are often made

    21

    9%

    Total

    225

    		  


    19.1. Who can approve an exception? (Please check all that apply.)

    - An Opinion Preparer

    20

    14%

    - The Consulted Lawyer (Defined as another lawyer who, under your firm’s policy or practice, consults with Opinion Preparers about or approves an Opinion Letter or an Opinion before an Opinion Letter is delivered.)

    42

    29%

    - An opinion committee

    61

    42%

    - The chair or another member or members of an opinion committee

    66

    46%

    - A lawyer or lawyers designated or approved by an opinion committee or committee member(s)

    13

    9%

    - A lawyer or lawyers having position(s) in management of your firm or relationships with a relevant client or clients

    23

    16%

    - A lawyer or lawyers in one or more designated practice groups or with special expertise

    28

    19%

    - A lawyer or lawyers designated in some other way (Please explain.)

    2

    1%

    - Your firm’s general counsel

    24

    17%

    - Depends on the situation (Please explain.)

    6

    4%

    Total

    145

    		  


    20. Does your firm’s policy or practice regarding consultation call for the Consulted Lawyer not to be otherwise involved in the transaction?

    - Always

    67

    28%

    - In some but not all situations (Please explain.)

    29

    12%

    - No

    145

    60%

    - Total

    241

    		  


    21. Does your firm’s policy or practice regarding consultation call for the Consulted Lawyer not to be otherwise involved with the client?

    - Always

    10

    4%

    - In some but not all situations (Please explain.)

    24

    10%

    - No

    203

    86%

    - Total

    237

    		  


    22. Who can the Consulted Lawyer be? (Please check all that apply.)

    1. An entire opinion committee

    55

    23%

    2. Any member of an opinion committee

    152

    64%

    3. A designated member or members or other designee of an opinion committee

    64

    27%

    4. Any lawyer in your firm

    8

    3%

    5. Any partner or equivalent in your firm

    84

    35%

    6. A lawyer or lawyers with expertise in at least one of the legal areas addressed in the Opinion Letter

    100

    41%

    7. A lawyer or lawyers with expertise in at least one type of transaction that is the subject of an Opinion in the Opinion Letter

    57

    24%

    8. Both a committee or a member(s) or designee(s) of a committee and a lawyer with such expertise

    56

    23%

    9. A lawyer from a list of designated lawyers who may serve as a Consulted Lawyer

    19

    8%

    10. A lawyer in one or more designated practice groups

    12

    5%

    11. Your firm’s general counsel

    22

    9%

    12. Other (Please describe.)

    20

    8%

    Total

    239

    		  


    22.1 Who prepares the list of designated lawyers who may serve as the Consulted Lawyer? (Please check all that apply.)

    - An opinion committee or a member or members of an opinion committee

    9

    50%

    - One or more practice groups (or a member or members of a practice group(s) responsible for or expert in all or a portion of the transaction

    3

    17%

    - Firm management or your firm’s general counsel

    8

    44%

    - A combination of the foregoing (Please describe.)

    3

    17%

    - Other (Please describe.)

    2

    11%

    Total

    18

    		  


    22.2 Do the Opinion Preparers have discretion to select which member of an opinion committee will be the Consulted Lawyer?

    - Yes

    138

    94%

    - No (Please indicate who makes the selection.)

    9

    6%

    Total

    147

    		  


    22.3 Do the Opinion Preparers have discretion to select which designated member or members or other designee of an opinion committee will be the Consulted Lawyer?

    - Yes

    51

    82%

    - No (Please indicate who makes the selection.)

    11

    18%

    Total

    62

    		  


    22.4 Do the Opinion Preparers have discretion to select which lawyer in your firm will be the Consulted Lawyer?

    - Yes

    8

    100%

    - No (Please indicate who makes the selection.)

    0

    0%

    Total

    8

    		  


    22.5 Do the Opinion Preparers have discretion to select which partner or equivalent in your firm will be the Consulted Lawyer?

    - Yes

    79

    95%

    - No (Please indicate who makes the selection.)

    4

    5%

    Total

    83

    		  


    22.6 Do the Opinion Preparers have discretion to select which lawyer or lawyers with expertise in at least one of the legal areas addressed in the Opinion Letter will be the Consulted Lawyer?

    - Yes

    84

    87%

    - No (Please indicate who makes the selection.)

    13

    13%

    Total

    97

    		  


    22.7 Do the Opinion Preparers have discretion to select which lawyer or lawyers with expertise in at least one type of transaction that is the subject of an Opinion in the Opinion Letter will be the Consulted Lawyer?

    - Yes

    50

    93%

    - No (Please indicate who makes the selection.)

    4

    7%

    Total

    54

    		  


    22.8 Do the Opinion Preparers have discretion to select which committee or a member(s) or designee(s) of a committee and a lawyer with such expertise will be the Consulted Lawyer?

    - Yes

    46

    84%

    - No (Please indicate who makes the selection.)

    9

    16%

    Total

    55

    		  


    22.9 Do the Opinion Preparers have discretion to select which lawyer from a list of designated lawyers will be the Consulted Lawyer?

    - Yes

    18

    100%

    - No (Please indicate who makes the selection.)

    0

    0%

    Total

    18

    		  


    22.10 Do the Opinion Preparers have discretion to select which lawyer in one or more designated practice groups will be the Consulted Lawyer?

    - Yes

    9

    82%

    - No (Please indicate who makes the selection.)

    2

    18%

    Total

    11

    		  


    23. In general, does your firm’s policy or practice regarding consultation call for the Consulted Lawyer to be a partner or equivalent in your firm?

    - Yes, always

    174

    74%

    - Yes, with exceptions (Please describe.)

    45

    19%

    - No

    15

    6%

    - Total

    234

    		  


    24. Does your firm’s policy or practice address when the Consulted Lawyer is supposed to be first consulted?

    - Yes

    81

    35%

    - No

    154

    66%

    Total

    235

    		  


    24.1 When is the Consulted Lawyer supposed to be first consulted? (Please check the one answer that best describes your firm’s policy or practice.)

    - When the need for an Opinion Letter is identified

    10

    11%

    - When negotiation of an agreement calling for an Opinion Letter begins

    6

    7%

    - When drafting of the Opinion Letter begins

    7

    8%

    - Prior to providing the draft Opinion Letter to the other side

    45

    50%

    - Any time prior to delivery of the Opinion Letter

    14

    16%

    - At some other time (Please describe.)

    8

    9%

    Total

    90

    		  


    25. Which of the following are responsibilities of the Consulted Lawyer? (Please check all that apply.)

    - Determine that the form (as distinguished from the substance) of the Opinion Letter satisfies your firm’s policy or practice

    170

    72%

    - Answer questions of the Opinion Preparers

    211

    89%

    - Determine whether the Opinion Letter raises special concerns

    208

    88%

    - Determine whether the Opinion Letter requires special procedures (due, for example, in either case, to a legal matter addressed by the Opinion Letter, the nature, size, or type of transaction, the particular client involved, or the relationship between the Opinion Preparers and the client) (Please describe.)

    97

    41%

    - Be satisfied about matters determined by the Consulted Lawyer or Opinion Preparers to require special attention

    174

    74%

    - Be satisfied about the substance of matters within the Consulted Lawyer’s expertise

    168

    71%

    - Identify issues on the face of the Opinion Letter (e.g., unusual wording, apparently incorrect Opinion)

    193

    82%

    - “Concur” in the Opinion Letter as if the Consulted Lawyer had been an Opinion Preparer

    68

    29%

    - Review backup documentation or otherwise determine that sufficient work was done to support Opinions being given

    65

    28%

    - Sign off on delivery of the Opinion Letter

    123

    52%

    - Other (Please describe.)

    8

    3%

    - It depends on the situation (Please explain.)

    9

    4%
    Total 236  


    26. Does your firm have a policy or practice calling for a follow-up consultation with the Consulted Lawyer before the Opinion Letter is provided (for example to confirm that any issues previously identified have been addressed or that no new issues or problems have arisen)?

    - Yes

    68

    29%

    - No

    166

    71%

    Total

    234

    		  


    27. Does your firm’s policy or practice call for consultation between the Consulted Lawyer and the Opinion Preparers ordinarily to be memorialized?

    - Yes

    78

    34%

    - No

    155

    67%

    Total

    233

    		  


    27.1 How? (Please check all that apply.)

    - By a notation on an internal copy of the Opinion Letter

    42

    54%

    - By a memo in a firm file or archive of Opinion Letters

    26

    33%

    - By a memo in the transaction file

    21

    27%

    - In some other way (Please describe.)

    20

    26%

    Total

    78

    		  

    V. Opinion Practice Management: Samples

    28. Does your firm have one or more sample Opinion Letters or sample Opinions?

    - Yes

    249

    88%

    - No

    34

    12%

    Total

    283

    		  


    28.1 Who prepares or approves sample Opinion Letters or sample Opinions? (Please check all that apply.)

    - An opinion committee

    108

    43%

    - Member(s) or designee(s) of an opinion committee

    99

    40%

    - A lawyer or lawyers in one or more designated practice groups or with specialized expertise

    114

    46%

    - Other (Please describe.)

    13

    5%

    Total

    249

    		  


    28.2 Which of the following best describes your firm’s policy or practice regarding the use of sample Opinion Letters and sample Opinions?

    - Use is expected or required as a starting point

    134

    54%

    - Use is encouraged as a starting point, but not expected or required

    76

    31%

    - Use is completely discretionary with Opinion Preparers

    25

    10%

    - Use depends on the situation (Please explain.)

    13

    5%

    Total

    248

    		  


    28.2.1 When use of sample Opinion Letters or Opinions is required or expected, are any exceptions permitted?

    - Yes

    125

    87%

    - No

    19

    13%

    Total

    144

    		  


    28.2.1.1 Who is authorized to approve those exceptions? (Please check all that apply.)

    - An Opinion Preparer

    39

    30%

    - The Consulted Lawyer

    55

    43%

    - An opinion committee

    60

    47%

    - The chair or another member or members of an opinion committee

    65

    50%

    - Your firm’s general counsel

    16

    12%

    - A lawyer(s) designated or approved by an opinion committee or a committee member or members

    23

    18%

    - A lawyer(s) having identified position(s) in management of your firm or relationships with a client or clients

    7

    5%

    - A lawyer(s) in one or more designated practice groups or with special expertise

    8

    6%

    - A lawyer(s) designated in some other way (Please explain.)

    1

    		  

    - Depends on the situation (Please explain.)

    5

    4%

    Total

    129

    		  


    29. Does your firm require, expect, or encourage preparation of a supporting memo, checklist, or similar supporting documentation for at least some Opinion Letters?

    - Yes

    129

    47%

    - No

    146

    53%

    Total

    275

    		  


    29.1 Does your firm have one or more forms or samples of such supporting documentation?

    - Yes

    91

    70%

    - No

    40

    31%

    Total

    131

    		  


    VI. Education

    30. Aside from one-on-one training in actual practice and making opinion materials available to its lawyers, does your firm routinely do any of the following to train or educate its lawyers on opinion matters? (Please check all that apply.)

    - 1. Discuss opinion topics at practice group or similar meetings

    162

    60%

    - 2. Distribute memoranda, newsletters, and/or other opinion related materials produced outside the firm

    129

    48%

    - 3. Distribute memoranda, newsletters, and/or other opinion related materials produced inside the firm

    91

    34%

    - 4. Encourage lawyers to review or use treatises, bar reports, form, or sample Opinion Letters or Opinions, or other resources made available to them by your firm

    175

    64%

    - 5. Encourage lawyers to review or use annotations to or other comments on your firm’s form or sample Opinion Letters

    104

    38%

    - 6. Offer internal seminars or presentations

    136

    50%

    - 7. Advise lawyers of programs by external providers

    78

    29%

    - 8. Other (Please describe.)

    9

    3%

    - 9. None of the above

    38

    14%

    Total

    272

    		  


    30.1. Is participation in or attendance at internal seminars or presentations required or expected (and not just encouraged) for any lawyers in your firm?

    - Yes (Please describe which lawyers: e.g., associates, partners, transactional associates, transactional partners, lateral lawyers.)

    72

    53%

    - No

    63

    47%

    Total

    135

    		  


    30.2 Is participation in or attendance at programs by external providers required or expected (and not just encouraged) for any lawyers in your firm?

    - Yes (Please describe which lawyers: e.g., associates, partners, transactional associates, transactional partners, lateral lawyers.)

    18

    23%

    - No

    60

    77%

    Total

    78

    		  


    31. In general, who in your firm is responsible for education or training on opinion matters? (Please check all that apply.)

    - An opinion committee or committees

    102

    44%

    - Member(s) or designee(s) of an opinion committee

    109

    47%

    - A lawyer or lawyers in one or more designated practice groups

    64

    28%

    - One or more partners or with transactional practices involving Opinion Letters

    92

    40%

    - A separate internal education committee

    18

    8%

    - Other (Please describe.)

    9

    4%

    Total

    233

    		  

    VII. Limitations on Opinions and Confirmations

    A. Delaware Opinions

    32. Does your firm have an office in Delaware that gives or advises Opinion Preparers in other firm offices on Opinions on Delaware law?

    - Yes

    22

    8%

    - No

    263

    92%

    Total

    285

    		  


    33. When asked, does your firm give Opinions (at least those not addressing novel or complex legal issues) on the following matters regarding Delaware entities without consulting Delaware counsel?

    1. Entity status and power and authorization of specified actions by corporations

    - Yes

    221

    93%

    - No

    18

    8%

    - Not Called for in Practice

    17

    		  

    Total

    256

    		  


    2. Entity status and power and authorization of specified actions by limited partnerships

    - Yes

    189

    86%

    - No

    31

    14%

    - Not Called for in Practice

    29

    		  

    Total

    249

    		  


    3. Entity status and power and authorization of specified actions by limited liability companies

    - Yes

    214

    91%

    - No

    22

    9%

    - Not Called for in Practice

    18

    		  

    Total

    254

    		  


    4. Issuance of stock of corporations

    - Yes

    166

    80%

    - No

    42

    20%

    - Not Called for in Practice

    39

    		  

    Total

    247

    		  


    5. Issuance of partnership interests in limited partnerships

    - Yes

    131

    72%

    - No

    52

    28%

    - Not Called for in Practice

    51

    		  

    Total

    234

    		  


    6. Issuance of membership interests in limited liability companies

    - Yes

    154

    75%

    - No

    51

    25%

    - Not Called for in Practice

    41

    		  

    Total

    246

    		  


    7. Limited liability of limited partners of limited partnerships

    - Yes

    84

    47%

    - No

    95

    53%

    - Not Called for in Practice

    63

    		  

    Total

    242

    		  


    8. Limited liability of members of limited liability companies

    - Yes

    90

    50%

    - No

    89

    50%

    - Not Called for in Practice

    62

    		  

    Total

    241

    		  

    B. Other States

    35. When asked, without consulting local counsel, does your firm give Opinions (at least those not addressing novel or complex legal issues) on the following laws when your firm does not have an office in the applicable state?

    Nevada Corporations Code

    - Yes

    30

    14%

    - No

    188

    86%

    - Not Called for in Practice

    59

    		  

    Total

    277

    		  


    Maryland General Corporation Law

    - Yes

    29

    14%

    - No

    177

    86%

    - Not Called for in Practice

    61

    		  

    Total

    267

    		  


    New York Contract Law

    - Yes

    78

    41%

    - No

    113

    59%

    - Not Called for in Practice

    40

    		  

    Total

    231

    		  


    Delaware Contract Law

    - Yes

    40

    17%

    - No

    191

    83%

    - Not Called for in Practice

    30

    		  

    Total

    261

    		  


    Contract Law of any state other than New York or Delaware

    - Yes

    36

    15%

    - No

    199

    85%

    - Not Called for in Practice

    30

    		  

    Total

    265

    		  


    Entity Law of any state other than Delaware, and other than (1) the Nevada Corporation Law or (2) the Maryland General Corporation Law

    - Yes

    60

    25%

    - No

    181

    75%

    - Not Called for in Practice

    29

    		  

    Total

    270

    		  


    36. When an Opinion on the law of another state in which your firm does not have an office (other than Delaware) is given by your firm, is it typically reviewed by a lawyer in your firm who is licensed or practices in the state whose law is covered by the Opinion?

    - Yes

    90

    70%

    - No

    39

    30%

    Total

    129

    		  


    C. Uniform Commercial Code Opinions

    37. When asked, without consulting local counsel, does your firm give Opinions on the following Articles of the Uniform Commercial Code (as reported in a publicly available compilation, or otherwise) of a state or states in which your firm does not have an office? (Please check only one box in each line.)

     

    Yes

    %

    No

    %

    Not called for in Practice

    Total

    1. Article 8

    119

    53%

    106

    47%

    50

    275

    2. Article 9

    184

    71%

    75

    29%

    15

    274


    D. No-Litigation Confirmations

    38. Does your firm give confirmations of any kind regarding the existence of legal proceedings (“no-litigation confirmations”)?

    - Yes

    102

    37%

    - Sometimes (Please explain.)

    106

    38%

    - No

    70

    25%

    Total

    278

    		  


    38.1 As a general rule, which of the following do your firm’s no-litigation confirmations cover: (Please check all that apply.)

    Pending litigation

    197

    98%

    Litigation threatened in writing

    113

    56%

    Litigation threatened orally

    14

    7%

    Total

    202

    		  


    38.2 As a general rule, are your firm’s no-litigation confirmations limited to proceedings: (Please check all that apply.)

    - That could adversely affect the client generally (with or without a materiality qualifier)

    58

    28%

    - That could adversely affect the transaction

    105

    50%

    - In which your firm represents the client

    109

    52%

    - Of which your firm or specified lawyers in your firm have knowledge

    142

    68%

    Total

    208

    		  


    E. No Breach or Default

    39. As a general rule, in giving an Opinion that entering into an agreement for a transaction will not result in a breach of or default under other agreements, does your firm expressly limit the coverage of the Opinion to other agreements that are:

    - Identified in a specified list

    167

    62%

    - Known to your firm

    86

    32%

    - No limitation

    4

    1%

    - Other (Please describe.)

    17

    6%

    Total

    274

    		  


    F. Financial Covenants

    40. Bar association reports differ on whether opinion givers should cover financial covenants when giving no breach or default Opinions. As a general rule, in giving an Opinion that entering into an agreement for a transaction will not result in a breach of or default under other agreements, does your firm regularly cover financial covenants in the other agreements?

    - Yes

    8

    4%

    - No

    182

    83%

    - Prefer not to cover financial covenants but sometimes will (Please explain.)

    18

    8%

    - It depends on the provision or the situation (Please explain.)

    12

    6%

    - No policy or established practice

    54

    		  

    Total

    274

    		  


    G. Arbitration Clauses

    41. As a general rule, in giving an Opinion on the enforceability of an agreement in a wholly domestic U.S. transaction, does your firm regularly cover provisions requiring arbitration?

    - Yes

    52

    25%

    - No

    142

    67%

    - Prefer not to cover arbitration provisions but sometimes will (Please explain.)

    12

    6%

    - It depends on the provision or the situation (Please explain.)

    5

    2%

    - No policy or established practice

    61

    		  

    Total

    272

    		  


    VIII. Archives

    42. Does your firm maintain a file or archive of: (Please check all that apply.)

    -Opinion Letters your firm has given

    147

    55%

    -Opinion Letters given by other firms

    48

    18%

    -Neither of the above

    121

    45%

    Total

    268

    		  


    42.1. Does your firm use an electronic index or search tool to retrieve information from the Opinion Letters in the file(s) or archive(s)?

    -Yes (Please describe.)

    82

    55%

    -No

    67

    45%

    Total

    149

    		  

    IX. Real Estate Opinions

    43. Does your firm deliver Opinion Letters in real estate transactions?

    -Yes

    245

    91%

    -No

    25

    9%

    Total

    270

    		  


    43.1 Which of the following best describes your firm’s opinion practice?

    -Most Opinion Letters delivered by your firm are in real estate transactions

    47

    19%

    -Many but not most Opinion Letters delivered by your firm are in real estate transactions

    132

    54%

    -Few Opinion Letters delivered by your firm are in real estate transactions

    66

    27%

    Total

    245

    		  


    43.2 Do your firm’s policies, practices, or procedures for preparation and delivery of Opinion Letters in real estate transactions differ from those for Opinion Letters in other transactions?

    -Yes (Please explain.)

    30

    12%

    -No

    201

    82%

    -It depends (Please explain.)

    12

    5%

    Total

    245

    		  


    X. Firm Characteristics

    44. Please indicate the number of lawyers in your firm.

    -1–10

    34

    13%

    -11–25

    26

    10%

    -26–50

    24

    9%

    -51–200

    74

    27%

    -201–500

    40

    15%

    -501–1,000

    42

    17%

    -More than 1,000

    30

    11%

    Total

    270

    		  


    44.1 Please rate the importance of your firm’s opinion practice on a scale of 1 to 5, where 1 signifies that your firm seldom delivers Opinion Letters and 5 signifies that representing clients in business transactions is an important part of your firm’s practice requiring frequent delivery of Opinion Letters. (Please check only one answer.)

    -1

    21

    8%

    -2

    34

    13%

    -3

    62

    23%

    -4

    60

    23%

    -5

    89

    34%

    Total

    266

    		  


    44.2 Approximately how many attorneys in your firm practice in the areas in which Opinion Letters covered by this Survey are issued??

    -1–10

    80

    30%

    -11–25

    50

    19%

    -26–50

    22

    8%

    -Over 50

    115

    43%

    Total

    267

    		  


    44.3 How many offices does your firm have?

    -1

    78

    29%

    -2–5

    84

    31%

    -6–10

    38

    14%

    -More than 10

    68

    25%

    Total

    268

    		  


    44.4 How many of your firm’s offices are outside of the United States?

    -None

    191

    71%

    -1

    11

    4%

    -2–5

    30

    11%

    -6–10

    18

    7%

    -More than 10

    21

    8%

    Total

    271

    		  


    44.5 Please indicate the location of your firm’s headquarters

    Alabama - AL

    1

    Alaska - AK

    0

    Arizona - AZ

    6

    Arkansas - AR

    1

    California - CA

    17

    Colorado - CO

    5

    Connecticut - CT

    2

    Delaware - DE

    8

    Florida - FL

    10

    Georgia - GA

    6

    Hawaii - HI

    3

    Idaho - ID

    2

    Illinois - IL

    9

    Indiana - IN

    2

    Iowa - IA

    2

    Kansas - KS

    0

    Kentucky - KY

    0

    Louisiana - LA

    4

    Maine - ME

    4

    Maryland - MD

    4

    Massachusetts - MA

    11

    Michigan - MI

    6

    Minnesota - MN

    3

    Mississippi - MS

    2

    Missouri - MO

    5

    Montana - MT

    0

    Nebraska - NE

    0

    Nevada - NV

    1

    New Hampshire - NH

    2

    New Jersey - NJ

    10

    New Mexico - NM

    2

    New York - NY

    28

    North Carolina - NC

    11

    North Dakota - ND

    0

    Ohio - OH

    8

    Oklahoma - OK

    4

    Oregon - OR

    4

    Pennsylvania - PA

    11

    Puerto Rico - PR

    1

    Rhode Island - RI

    1

    South Carolina - SC

    0

    South Dakota - SD

    0

    Tennessee - TN

    4

    Texas - TX

    12

    Utah - UT

    1

    Vermont - VT

    0

    Virginia - VA

    8

    Washington - WA

    3

    Washington, D.C. - DC

    5

    West Virginia - WV

    0

    Wisconsin - WI

    2

    Wyoming - WY

    0

    Outside the U.S.

    8

    I decline to answer this question

    6

    Total

    245


    44.6 Please indicate each U.S. state in which your firm has an office.

    Alabama - AL

    6

    Alaska - AK

    3

    Arizona - AZ

    15

    Arkansas - AR

    1

    California - CA

    83

    Colorado - CO

    26

    Connecticut - CT

    11

    Delaware - DE

    26

    Florida - FL

    42

    Georgia - GA

    24

    Hawaii - HI

    3

    Idaho - ID

    6

    Illinois - IL

    42

    Indiana - IN

    3

    Iowa - IA

    3

    Kansas - KS

    0

    Kentucky - KY

    2

    Louisiana - LA

    9

    Maine - ME

    6

    Maryland - MD

    14

    Massachusetts - MA

    34

    Michigan - MI

    11

    Minnesota - MN

    11

    Mississippi - MS

    5

    Missouri - MO

    8

    Montana - MT

    2

    Nebraska - NE

    2

    Nevada - NV

    13

    New Hampshire - NH

    6

    New Jersey - NJ

    28

    New Mexico - NM

    6

    New York - NY

    97

    North Carolina - NC

    25

    North Dakota - ND

    2

    Ohio - OH

    12

    Oklahoma - OK

    6

    Oregon - OR

    9

    Pennsylvania - PA

    27

    Puerto Rico - PR

    1

    Rhode Island - RI

    3

    South Carolina - SC

    7

    South Dakota - SD

    1

    Tennessee - TN

    8

    Texas - TX

    60

    Utah - UT

    7

    Vermont - VT

    0

    Virginia - VA

    23

    Washington - WA

    15

    Washington, D.C. - DC

    96

    West Virginia - WV

    1

    Wisconsin - WI

    6

    Wyoming - WY

    1

    I decline to answer this question

    13

    Appendix 2

    Charts Derived from Selected Survey Responses (By Firm Size)

    Chart 1
    Question 1
    Firm Opinion Activities

    Please indicate whether your firm has any of the following policies or procedures (Please check all that apply.)

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Procedures for providing Opinion Letters

    18

    21

    21

    73

    38

    42

    30

    243

    Policies on whether to give Opinions or types of Opinions

    17

    13

    13

    56

    34

    37

    27

    197

    Policies on the substantive content or wording of your firm’s Opinion Letters or particular Opinions

    18

    14

    12

    54

    26

    35

    29

    188

    Procedures for reviewing Opinion Letters of other law firms addressed to your firm’s clients as part of transactions

    10

    4

    6

    18

    6

    11

    3

    58

    Policies on the substantive content or wording of Opinion Letters of other law firms addressed to your firm’s clients

    5

    3

    3

    9

    1

    6

    0

    27

    TOTAL

    24

    21

    21

    73

    40

    42

    30

    251


    Chart 2
    Question 3
    Number of Firms With Opinion Committees

    How many opinion committees does your firm have?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    None

    23

    11

    5

    14

    3

    2

    1

    59

    One

    11

    13

    19

    54

    32

    32

    19

    180

    More than one

    0

    1

    0

    7

    5

    8

    10

    31

    TOTAL

    34

    25

    24

    75

    40

    42

    30

    270


    Chart 3
    Question 4
    Opinion Committee Review of Individual Opinion Letters

    Does/do your firm’s opinion committee(s) (including action by committee members) review, clear, or approve individual Opinion Letters to be provided by your firm?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    11

    13

    17

    56

    32

    24

    18

    171

    No

    0

    1

    2

    5

    5

    16

    11

    40

    TOTAL

    11

    14

    19

    61

    37

    40

    29

    211


    Chart 4
    Question 5
    Opinion Committee Preparation or Approval of Opinion Policies or Procedures

    Does/do your firm’s opinion committee(s) (including actions by committee members) prepare or approve firm opinion policies or procedures?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    8

    10

    14

    47

    35

    37

    27

    178

    No

    3

    5

    5

    12

    2

    3

    2

    32

    TOTAL

    11

    15

    19

    59

    37

    40

    29

    210


    Chart 5
    Question 6
    Opinion Committee Administration, Monitoring, or Waiving of Policies or Procedures

    Does/do your firm’s opinion committee(s) (including action by committee members) administer, monitor, or waive compliance with firm opinion policies or procedures?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    8

    13

    14

    47

    28

    33

    22

    165

    No

    3

    2

    5

    14

    9

    7

    6

    46

    TOTAL

    11

    15

    19

    61

    37

    40

    28

    211


    Chart 6
    Question 7
    Opinion Committee Preparation or Approval of Samples

    Does/do your firm’s opinion committee(s) (including actions by committee members) prepare or approve forms, samples, or model Opinions, Opinion Letters, supporting documentation, or other materials?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    9

    9

    14

    51

    27

    37

    27

    174

    No

    2

    6

    5

    10

    10

    3

    2

    38

    TOTAL

    11

    15

    19

    61

    37

    40

    29

    212


    Chart 7
    Question 8
    Opinion Committee Responsibility for Education or Training

    Does/do your firm’s opinion committee(s) (including actions by committee members) conduct or oversee education or training of your firm’s lawyers on opinion matters?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    6

    8

    11

    44

    32

    31

    25

    157

    No

    5

    7

    8

    17

    5

    9

    4

    55

    TOTAL

    11

    15

    19

    61

    37

    40

    29

    212


    Chart 8
    Question 10
    Who Appoints Firm Committees?

    How are members of your firm’s opinion committee or committees appointed? (Please check all that apply.)

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    By firm management or management committee

    10

    8

    9

    37

    26

    22

    25

    137

    By firm general counsel

    0

    0

    0

    1

    5

    3

    2

    11

    By practice groups

    0

    3

    1

    12

    9

    9

    6

    40

    By opinion committee chair

    1

    0

    4

    7

    8

    12

    14

    46

    By the committee itself

    0

    1

    8

    10

    6

    8

    7

    40

    It depends on the committee (Please explain.)

    0

    1

    1

    1

    1

    2

    0

    6

    Other (Please describe.)

    0

    1

    0

    2

    3

    4

    2

    12

    TOTAL

    11

    14

    19

    61

    37

    40

    29

    211


    Chart 9
    Question 14
    Consultation Policy and Practice

    Does your firm have a policy or practice regarding Opinion Preparers consulting with or obtaining approval by another lawyer or lawyers (the “Consulted Lawyer” before providing an Opinion letter? (Note: The Consulted Lawyer could be a firm opinion committee(s) or one or more members thereof.)

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    23

    18

    20

    63

    36

    39

    28

    227

    No

    11

    8

    4

    12

    4

    3

    2

    44

    TOTAL

    34

    26

    24

    75

    40

    42

    30

    271


    Chart 10
    Question 20
    Involvement of Consulting Lawyer With the Transaction

    Does your firm's policy or practice regarding consultation call for the Consulted Lawyer not to be otherwise involved in the transaction?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Always

    3

    4

    3

    13

    13

    15

    12

    63

    In some but not all situations (Please explain.)

    3

    2

    3

    6

    4

    4

    6

    28

    No

    17

    12

    14

    44

    19

    20

    10

    136

    TOTAL

    23

    18

    20

    63

    36

    39

    28

    227


    Chart 11
    Question 30
    Firm Lawyer Opinion Education

    Aside from one-on-one training in actual practice and making opinion materials available to its lawyers, does your firm routinely do any of the following to train or educate its lawyers on opinion matters? (Please check all that apply.)

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Advise lawyers of programs by external providers

    9

    5

    6

    29

    15

    7

    6

    77

    Discuss opinion topics at practice group or similar meetings

    14

    9

    14

    44

    29

    27

    21

    158

    Distribute memoranda, newsletters, and/or other opinion-related materials produced inside the firm

    5

    3

    5

    28

    12

    18

    17

    88

    Distribute memoranda, newsletters, and/or other opinion-related materials produced outside the firm

    12

    11

    8

    40

    15

    18

    18

    122

    Encourage lawyers to review or use annotations to or other comments on your firm’s form or sample opinion letters

    12

    5

    7

    23

    11

    20

    23

    101

    Encourage lawyers to review or use treatises, bar reports, form or sample Opinion Letters, or Opinions, or other resources made available to them by your firm

    17

    15

    15

    49

    24

    24

    25

    169

    None of the above

    10

    7

    4

    8

    2

    4

    0

    35

    Offer internal seminars or presentations

    1

    2

    8

    36

    28

    28

    28

    131

    Other (Please describe.)

    1

    0

    0

    4

    1

    3

    0

    9

    TOTAL

    34

    26

    24

    75

    40

    42

    30

    271


    Chart 12
    Question 31
    Responsibility for Opinion Education

    In general, who in your firm is responsible for education or training on opinion matters? (Please check all that apply.)

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    A lawyer or lawyers in one or more designated groups

    4

    7

    8

    17

    11

    7

    7

    61

    A separate internal education committee

    0

    0

    0

    4

    3

    4

    7

    18

    An opinion committee or committees

    5

    6

    5

    27

    18

    23

    14

    98

    Member(s) or designee(s) of an opinion committee

    5

    5

    11

    28

    21

    16

    17

    103

    One or more partners or equivalent with transactional practices involving Opinion Letters

    16

    8

    7

    28

    13

    11

    9

    91
    Other (Please describe.)

    0

    1

    0

    1

    2

    2

    1

    7

    TOTAL

    24

    18

    19

    65

    38

    38

    29

    231


    Chart 13
    Question 33
    Opinions on Delaware Entites by Non-delaware Firms

    When asked, does your firm give Opinions (at least those not addressing novel or complex legal issues) on the following matters regarding Delaware entities without consulting Delaware counsel?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Entity status and power and authorization of specified actions by corporations

    		                

    Yes

    18

    22

    19

    62

    37

    34

    25

    217

    No

    6

    3

    4

    5

    0

    0

    0

    18

    Not Called for in Firm’s Practice

    8

    1

    2

    3

    0

    0

    0

    14

    TOTAL

    32

    26

    25

    70

    37

    34

    25

    249

    Entity status and power and authorization of specified actions by limited partnerships

    		                

    Yes

    17

    15

    14

    51

    35

    29

    24

    185

    No

    7

    6

    4

    8

    1

    5

    0

    31

    Not Called for in Firm’s Practice

    8

    5

    5

    7

    0

    0

    1

    26

    TOTAL

    32

    26

    23

    66

    36

    34

    25

    242

    Entity status and power and authorization of specified actions by limited liability companies

    		                

    Yes

    19

    22

    16

    59

    37

    32

    25

    210

    No

    5

    3

    5

    7

    0

    2

    0

    22

    Not Called for in Firm’s Practice

    8

    1

    2

    3

    0

    1

    0

    15

    TOTAL

    32

    26

    23

    69

    37

    35

    25

    247
     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Issuance of stock of corporations

    		                

    Yes

    10

    15

    14

    44

    30

    30

    20

    163

    No

    9

    5

    8

    12

    3

    2

    3

    42

    Not called for in Firm’s Practice

    13

    6

    2

    8

    3

    1

    1

    34

    TOTAL

    32

    26

    24

    64

    36

    33

    24

    239

    Issuance of partnership interests in limited partnerships

    		                

    Yes

    9

    8

    7

    38

    26

    25

    18

    131

    No

    9

    6

    9

    13

    6

    6

    3

    52

    Not Called for in Firm’s Practice

    14

    12

    7

    11

    3

    1

    3

    51

    TOTAL

    32

    26

    23

    62

    35

    32

    24

    234

    Issuance of membership interests in limited liability companies

    		                

    Yes

    11

    12

    11

    44

    26

    27

    19

    150

    No

    9

    5

    9

    13

    7

    5

    3

    51

    Not Called for in Firm’s Practice

    12

    9

    3

    7

    3

    2

    2

    38

    TOTAL

    32

    26

    23

    64

    36

    34

    24

    239
    Number of Firm Lawyers

     

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Limited liability of limited partners of limited partnerships

    		                

    Yes

    9

    6

    6

    22

    14

    18

    6

    81

    No

    13

    10

    10

    23

    14

    10

    13

    93

    Not Called for in Firm’s Practice

    10

    10

    7

    18

    7

    3

    5

    60

    TOTAL

    32

    26

    23

    63

    35

    31

    24

    234

    Limited liability of members of limited liability companies

    		                

    Yes

    9

    8

    7

    23

    17

    17

    6

    87

    No

    13

    9

    10

    22

    12

    9

    12

    87

    Not Called for in Firm’s Practice

    10

    8

    6

    18

    7

    4

    6

    59

    TOTAL

    32

    25

    23

    63

    36

    30

    24

    233


    Chart 14
    Question 35
    Opinions on Other State Law

    When asked, without consulting local counsel, does your firm give Opinions (at least those not addressing novel or complex legal issues) on the following laws when your firm does not have an office in the applicable state?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Nevada Corporations Code

    		                

    Yes

    1

    1

    4

    8

    8

    7

    1

    30

    No (or rarely)

    20

    19

    13

    51

    28

    26

    28

    185

    Not Called for in Firm Practice

    13

    6

    7

    19

    3

    5

    1

    54

    TOTAL

    34

    26

    24

    78

    39

    38

    30

    269

    Maryland General Corporation Law

    		                

    Yes

    0

    0

    1

    7

    8

    8

    4

    28

    No (or rarely)

    18

    20

    13

    50

    27

    25

    22

    175

    Not Called for in Firm Practice

    15

    6

    10

    17

    2

    5

    1

    56

    TOTAL

    33

    26

    24

    74

    37

    38

    27

    259

    New York Contract Law

    		                

    Yes

    3

    3

    2

    25

    19

    18

    6

    76

    No (or rarely)

    19

    20

    16

    39

    8

    8

    3

    113

    Not Called for in Firm Practice

    12

    3

    5

    7

    2

    5

    3

    37

    TOTAL

    34

    26

    23

    71

    29

    31

    12

    226

    Delaware Contract Law

    		                

    Yes

    4

    4

    3

    13

    8

    7

    0

    39

    No (or rarely)

    18

    19

    18

    51

    30

    29

    24

    189

    Not Called for in Firm Practice

    11

    2

    3

    7

    1

    3

    0

    27

    TOTAL

    33

    25

    24

    71

    39

    39

    24

    255

    Contract Law of any state other than New York or Delaware

    		                

    Yes

    6

    2

    5

    9

    6

    5

    2

    35

    No (or rarely)

    19

    21

    16

    57

    31

    30

    24

    198

    Not Called for in Firm Practice

    9

    3

    3

    9

    1

    3

    0

    28

    TOTAL

    34

    26

    24

    75

    38

    38

    26

    261

    Entity Law of any state other than Delaware, and other that (1) Nevada Corporation Law or (2) the Maryland General Corporation Law

    		                

    Yes

    6

    2

    7

    17

    9

    11

    5

    57

    No (or rarely)

    19

    20

    14

    51

    27

    26

    24

    181

    Not Called for in Firm Practice

    9

    4

    3

    6

    1

    3

    0

    26

    TOTAL

    34

    26

    24

    74

    37

    40

    29

    264


    Chart 15
    Question 36
    Review of Opinions on Other State Law

    When an Opinion on the law of another state in which your firm does not have an office (other than Delaware) is given by your firm, is it typically reviewed by a lawyer in your firm who is licensed or practices in the state whose law is covered by the Opinion?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    4

    3

    4

    33

    21

    17

    6

    88

    No

    5

    4

    4

    7

    8

    8

    3

    39

    TOTAL

    9

    7

    8

    40

    29

    25

    9

    127


    Chart 16
    Question 37
    Opinions on the UCC of Other States

    When asked, without consulting local counsel, does your firm give Opinions on the following Articles of the Uniform Commercial Code (as reported in a publicly available compilation, or otherwise) of a state or states in which your firm does not have an office?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Article 8

    		                

    Yes

    5

    7

    5

    32

    26

    21

    20

    116

    No

    17

    13

    12

    30

    9

    13

    7

    101

    Not Called for in Firm Practice

    13

    7

    7

    10

    4

    6

    1

    48

    TOTAL

    35

    27

    24

    72

    39

    40

    28

    265

    Article 9

    		                

    Yes

    13

    15

    14

    48

    34

    31

    24

    179

    No

    13

    11

    8

    23

    5

    9

    4

    73

    Not Called for in Firm Practice

    8

    1

    2

    4

    0

    2

    0

    17

    TOTAL

    34

    27

    24

    75

    39

    42

    28

    269


    Chart 17
    Question 39
    No Breach or Default Opinions

    As a general rule, in giving an Opinion that entering into an agreement for a transaction will not result in a breach of or default under other agreements, does your firm expressly limit the coverage of the Opinion to other agreements that are:

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Identified in a specified list

    10

    7

    12

    41

    34

    34

    27

    165

    Known to your firm

    16

    17

    12

    30

    5

    5

    1

    86

    No limitation

    1

    1

    0

    1

    0

    0

    1

    4

    Other (Please describe.)

    6

    1

    0

    4

    1

    3

    1

    16

    TOTAL

    33

    26

    24

    76

    40

    42

    30

    271


    Chart 18
    Question 40
    No Breach or Default Opinions on Financial Covenants

    As a general rule, in giving an Opinion that entering into an agreement for a transaction will not result in a breach of or default under other agreements, does your firm regularly cover financial covenants in the other agreements?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    1

    1

    0

    1

    2

    2

    1

    8

    No

    15

    17

    20

    47

    33

    27

    21

    180

    Prefer not to cover financial covenants but sometimes will (Please explain.)

    2

    1

    1

    4

    1

    4

    4

    17

    It depends on the provision or the situation (Please explain.)

    3

    1

    1

    4

    0

    1

    2

    12

    No policy or established practice

    12

    6

    2

    20

    4

    8

    2

    54

    TOTAL

    33

    26

    24

    76

    40

    42

    30

    271

    Chart 19
    Question 41
    Opinions on Enforcement of Arbitration Provisions

    As a general rule, in giving an Opinion on the enforceability of an agreement in a wholly domestic U.S. transaction, does your firm regularly cover provisions requiring arbitration?

     

    Number of Firm Lawyers

    1–10

    11–25

    26–50

    51–200

    201–500

    501–1000

    >1,000

    Total

    Yes

    8

    4

    7

    15

    9

    5

    4

    52

    No

    15

    15

    12

    40

    19

    21

    17

    139

    Prefer not to cover arbitration provisions but sometimes will (Please explain.)

    0

    0

    0

    2

    1

    4

    5

    12

    It depends on the provision or the situation (Please explain.)

    0

    2

    0

    1

    0

    2

    0

    5

    No policy or established practice

    10

    4

    5

    18

    11

    10

    3

    61

    TOTAL

    33

    24

    24

    76

    40

    42

    29

    269

    The Survey Subcommittee consisted of: John B. Power (Reporter), Arthur A. Cohen (Co-Reporter), E. Carolan Berkley, J. Truman Bidwell, Jr., Richard N. Frasch, Donald W. Glazer, Timothy G. Hoxie, Christina M. Houston, Richard R. Howe, Stanley Keller, Ettore A. Santucci, and J.W. Thompson Webb. The Subcommittee specially recognizes and thanks Donald W. Glazer and Stanley Keller for their extraordinarily helpful editing throughout the preparation of the 2019 survey and this report. The Subcommittee was staffed by Leslie Archer, former committee manager of the ABA Business Law Section.