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Opinions Matters

Opinions Matters Fall 2018

Virginia Report on Legal Opinions Issued

Charles L Menges

Summary

  • The Virginia Report discusses the appropriate use of third party legal opinions, the ethical considerations involved, and the role of “customary practice” in the issuance and interpretation of opinion letters.
  • Virginia Report sets forth an illustrative real estate finance opinion letter, an illustrative Article 9 secured transaction opinion letter, and an illustrative equity issuance opinion letter.
Virginia Report on Legal Opinions Issued
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The Virginia Bar Association in 2018 joined approximately a dozen other state bar associations in publishing a report on third-party opinion letters, entitled “Virginia Report on Third-Party Legal Opinions in Business Transactions” (the “Virginia Report”). The Virginia Report is intended to be a resource and practical guide for Virginia lawyers who issue legal opinions by assimilating much of the national literature on opinion letters while also including guidance on Virginia-specific law that is applicable to opinion practice in the Commonwealth of Virginia.

The project to undertake the Virginia Report was initiated by the Business Law Section of the Virginia Bar Association, but the drafting committee included real estate lawyers as well as corporate lawyers who practice in Virginia. From the beginning, the committee recognized that much has already been written on the subject of legal opinions and customary opinion practice by various national organizations, including reports by opinion committees within the American Bar Association, the Working Group on Legal Opinions, and the Tri-Bar Committee, and treatises such as Fitzgibbon & Glazer on Legal Opinions. The committee was also aware that many large law firms in Virginia already have forms, policies, procedures, and resources to assist their lawyers in drafting and negotiating opinion letters. However, smaller firms and solo practitioners may not have access to such resources, and even lawyers at larger firms may find wading through the national opinion literature to be time-consuming and expensive. Therefore, the committee decided to prepare a report that would summarize in a useful format much of the current literature on legal opinions and provide a resource tailored to opinion practice in Virginia.

The Virginia Report discusses the appropriate use of third party legal opinions, the ethical considerations involved, and the role of “customary practice” in the issuance and interpretation of opinion letters. The Virginia Report then reviews; the customary structure of a third-party opinion letter; the appropriate scope of inquiry expected of opinion givers (both as lead counsel and as local counsel); the underlying assumptions, exclusions, and qualifications often used in opinion letters; and the actual opinions customarily requested and given and the due diligence required for them. The Virginia Report also includes a section on real estate finance opinion issues and a section on secured transactions opinions under Article 9 of the Uniform Commercial Code. Finally, the Virginia Report sets forth an illustrative real estate finance opinion letter, an illustrative Article 9 secured transaction opinion letter, and an illustrative equity issuance opinion letter. The Virginia Report also includes a bibliography of various reports, articles, and treatises on third party legal opinions.

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