The Fall 2021 Meeting of the Working Group on Legal Opinions Foundation (“WGLO”) concluded on November 2, 2021 and consisted of sessions held on October 26, 2021, October 28, 2021 and November 2, 2021. As with the Fall 2020 and Spring 2021 meetings of WGLO, the Fall 2021 meeting was a virtual meeting in which all presentations were presented through a virtual electronic platform. Plenary sessions were conducted on October 26, 2021 and November 2, 2021. Meetings of various affinity groups occurred on October 28, 2021. The meetings were not recorded by WGLO (and attendees were instructed not to record the meetings) due to a desire to facilitate discussion among meeting panelists and other attendees, who might be more comfortable if they could speak without attribution.
As a reminder, WGLO (website: https://www.wglo.net/), is an organization whose mission, per its website, is “… to bring together all constituencies concerned with giving and receiving legal opinions in order to foster a national opinion perspective, broaden the consensus that exists and provide a continuing forum for discussion of opinion issues.” There are three categories of members of WGLO: the ABA’s Business Law Section, law firms and bar associations (such as the ABA’s Section of Real Property, Trust and Estate Law and state bar associations). Among WGLO’s activities is the hosting of a Spring meeting and a Fall Meeting each year.
Lawyers that are partners in, or, employed by, member law firms may, as of the date of this article, access written materials from the Fall 2021 meetings (https://www.wglo.net/publications/past-seminar-index/fall-2021-seminar). A log-in and password is required to access the materials. The materials include the meeting’s agenda and written materials relevant to the discussion topics.
Four programs were presented during the October 26 sessions. The first program, “Laws Commonly Excluded From the Coverage of Third-Party Legal Opinions in U.S. Commercial Loan Transactions” discussed an article published in 2021 in The Business Lawyer. The article discusses the practice of excluding coverage of certain laws from third-party legal opinions. The same group of authors previously wrote an article published in 2014 in The Business Lawyer. The article pertains to some of the conclusions reached by the authors, who practice in several jurisdictions, regarding coverage in legal opinions of certain laws. Among the conclusions is that there is wide acceptance among practitioners that certain laws are excluded from the coverage of an opinion letter unless specifically requested, but there is variation among practitioners as to how exclusions are expressed.
The second program, “Takeaway: Opinion Restrictions: The Uncertain Tail Wagging the Opinion Dog” discussed opinion restrictions, such as the assumptions, exceptions and limitations, that help to define the opinions themselves. Evidently, the trend has been to expand the number of restrictions, but reports and judicial decisions have not exhaustively treated the meaning of restrictions and how they are to be understood to the same extent such reports and decisions have addressed the opinions themselves.
The third session of the day, “Current Ethics Issues Relating to Transactions Practice”, was devoted to professional responsibility issues. One topic addressed the issue of “truthfulness” in lawyer communications with others. This topic was also addressed in the Spring 2021 conference programming. Another topic discussed was the duration of the attorney-client privilege.
The final session, “Opinions on Forum-Selection Clauses-Analytical Methodology,” discussed forum selection opinions in the context of cross-border opinions and in domestic US opinions. In domestic US opinion letter practice, opinions on forum-selection provisions are often excluded from the coverage of the opinions expressed in an opinion letter.
The meetings on October 28 were devoted to meetings of various affinity groups. WGLO has organized groups within particular practice areas to discuss opinion issues that may be of concern to those that issue or receive opinion letters in transactions involving those practice areas. There were six affinity group meetings on October 28: Capital Markets/Public Securities, Commercial Law and Finance, Corporate/Alternative Entities, Cross-Border Transactions, Real Estate and Private Equity/Venture Capital. These sessions were staggered so that each session followed the session presented by a different affinity group, thus affording those that wished to do so the opportunity to attend the meetings of all affinity groups. The real estate affinity group meeting spent much of its meeting discussing the laws excluded from opinions in real estate transactions. In addition, there was a discussion of the recently issued New York Mortgage Loan Opinion Report.
The meeting on November 2 consisted of three substantive sessions. The first session, “Uptiering and Drop-Downs: Rendering Opinions on Liability Management Transactions,” addressed, among other things, opinions in the context of capital restructurings, which might include additional financing, and the interplay between the restructuring and additional financing, on the one hand, and existing financing, on the other hand.
The second session, “Formulating, Diligencing and Rendering 1940 Act Opinions”, concerned opinions to the effect that a particular entity is not subject to registration as an investment company under the Investment Company Act of 1940.
The last session of the day continued a feature of the WGLO conferences, a discussion of recent developments in opinion letter reports and case law that pertains to opinions or might affect the substance of the opinions themselves. As with prior meetings, the session included a discussion of several judicial decisions on a variety of substantive legal topics that could affect opinion practice.
The next WGLO conference is scheduled to occur on May 10, 2022 in New York City.
