American Bar Association
Forum on the Construction Industry
Written Opinions of Counsel and Other Reporting
Requirements for Outside Counsel
Steven J. Weber
Louis B. Antonacci
Holland & Knight LLP
Presented at the 2009 Fall Meeting
"The Two-Way Street of Construction Counseling:
Learning From the Ins & Outs"
October 15-16, 2009
©2009 American Bar Association
Introduction
Like most every relationship, the likely success of the relationship between inside and outside counsel depends greatly on clear and candid communication by both parties. This paper will examine two forms of communication from outside counsel to the client: 1) written opinions to a client; and 2) written opinions to a third party at the request of a client. And while there are nuances to both of these types of written communication that will be discussed below, neither can be successful unless outside counsel has a clear understanding of the client's needs and inclinations.
In the context of written legal opinions to a client, of course, the client's "needs" are highly relative and dependent on widely differing variables for any given client and any given situation. In order for outside counsel to render an opinion deemed valuable to the client, outside counsel must not only meet their professional obligations of competence and diligence, but must also appreciate the relationship between in-house counsel and the client's management team, corporate culture, and specific situational needs regarding the scope of any particular opinion letter. This may seem elementary to some readers, but rest assured there are many in-house attorneys who are consistently disappointed by the failure of outside counsel to render an opinion that addresses their immediate concerns or recognizes the fact that the client would rather talk about a three-month settlement plan than a two-year litigation strategy. From the perspective of outside counsel, we are sometimes disappointed to discover that we did not get a full or accurate version of the facts upon which to provide a legal opinions, which can essentially render the opinion worthless. All of these problems are avoidable.
Third-party legal opinions are quite a bit different of course. In this situation, outside counsel is not rendering advice to his or her client considering their interests and the attendant professional obligations alone, but rather is rendering an unprivileged legal evaluation of a discreet set of facts. As such, the culture, history, and personal interests of the client requesting the opinion are usually much less significant than in the context of a written opinion for a client. The parties must also consider that no attorney-client privilege attaches to a third-party legal opinion so their purposes in procuring the opinion should be carefully evaluated. Finally, there is a national practice developing around third-party legal opinions that could help to ensure greater uniformity and risk management in this area.
I.
Written
Opinions to a Client
A.
Standard of
Care
Before we examine the best practices
regarding the procuring and rendering of effective, written legal opinions, it
is relevant to set forth the generally accepted standard of care in order to
establish the parameters of mandatory practices. The
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law, but also to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation.
As thoughtful and interesting as that may be, it does not fully define an attorney's professional obligations in rendering legal advice.
ABA Rule 1.1 regarding "competence" amplifies the point: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."[1] Thus this rule requires that lawyers either have knowledge of the legal landscape through which they are being asked to navigate, or they must acquire the acumen required to proffer the requested opinions. If they cannot commit the time necessary to acquire the acumen, then they should get help from, or refer the client to, a lawyer who is, or is willing to become, "competent."
Beyond the basic ethical obligations of attorneys in rendering legal advice, of course, there are potential liabilities attendant to rendering legal advice. Generally speaking, legal malpractice looks and smells like most torts sounding in negligence, requiring proof of 1) an attorney-client relationship (creating a duty to the client); 2) negligence of the attorney in providing legal advice pursuant to the attorney-client relationship (breach of the duty created by the relationship); 3) injury; and 4) causation.[2] A review of the most recent cases cited in the previous endnote indicates that the most significant variable between jurisdictions is the degree of causation required, i.e., but-for causation or substantial contribution causation.
The lawyer's duty to the client is to exercise the care and competence of an ordinary lawyer in the practice area and locale in question.[3] The Seventh Circuit put it quite nicely: "Legal malpractice is not a failure to be brilliant, but a failure to come up to even a minimum standard of professional competence."[4] The lawyer's duty also depends on the scope of the engagement because they are generally held to the standard of ordinary competence in the matter for which they were retained.[5] Naturally, the bar of competence is elevated if the attorney holds him or herself out to be a specialist in any particular area.[6] As the Seventh Circuit noted in another case, this is the result of an intersection between tort and contract law:
A law firm or other professional entity that represents itself to have special competence in a particular matter commits itself to a standard of care above the average for the profession as a whole….
A lawyer is not negligent for failing to make sophisticated economic arguments; few lawyers are capable of making such arguments. But a lawyer who holds himself out to his clients as being capable of making such arguments is bound to the standard of care of a lawyer having that capability. It is a case of tort law merging into contract law.[7]
As will be further discussed below, considerations such as these should find their way into the terms of engagement letters with clients.
Of course, the law changes over time, and so the application of the standard of care in a legal malpractice action may be affected by the time of such application. While there are not many cases on this point, it is generally accepted that the attorney is held to the law as it existed at the time the advice was rendered, not when the action is brought, in accordance with generally accepted tort principles.[8]
B.
The
Engagement Letter
Engagement letters are significant because they memorialize the scope of representation and the parties' expectations at inception of the attorney-client relationship. A good engagement letter will discuss the specific matter(s) for which outside counsel is being retained. If the a long-term relationship encompassing presently unknown matters is contemplated, then it is typically considered best practice to have an overarching engagement letter that sets forth the terms applicable to all matters with that client, but then subsequently to execute individual engagement or scope letters to discreet pieces of litigation, consultation, or contract administration as they arise.
This is much more art than science, of course, and it requires sound judgment from client to client and matter to matter. As a general matter, of course, there are some items that should always be included in an engagement letter. An overarching engagement letter that contemplates presently unknown matters should start by identifying the matters for which counsel is presently being retained, of course, and then leave room for inclusion of future advisement when needed. Engagement letters should identify the attorneys that are likely to be working on matters for the client, along with their billing rates. Some firms may include the expertise of an individual attorney as a way of justifying their involvement or a higher billing rate. If an individual or law firm's particular expertise is part of the parties' understanding then there is nothing wrong with this, but it is important to keep in mind that this expressed expertise will raise the standard of care for those particular purposes.[9]
Most large corporations today have developed their own standard policies that become part and parcel of the engagement with outside counsel.[10] These policies can be quite comprehensive, detailing fee arrangements, scope of authority of in-house counsel, the frequency of invoices and the level of detail to be included, as well as specific cost factors such as staffing of cases, electronic legal research tools, photocopying charges, billing for travel time, and courier services.[11] Some firms require that billing entries themselves be coded for a particular type of work, i.e., drafting court documents, legal research, meeting with client, etc. Generally speaking, of course, the larger the client, the more standard policies and procedures they will have already established, which is generally true of law firms as well.
The most important thing about memorializing the parties' expectations is clarity. If a client is expecting specialized expertise from their outside counsel, then that client should probably ensure that is expressed in their terms of engagement. And likewise, if a lawyer or law firm does not have a particular expertise that may become necessary in the course of representation of a particular client, then it may be prudent to contemplate the possibility of hiring subject matter and/or jurisdictional experts as such needs arise.
C.
Written
Opinion to a Client
1.
Preliminary
Considerations
There are countless reasons why companies need or desire written opinions of outside counsel. A company may require highly specialized advice regarding a particular transaction or situation and that expertise may not exist within the company. Or a firm may deem it appropriate to have outside counsel ratify the in-house conclusion regarding a certain issue in the hopes that the ratification will act as something of a legal "guarantee" down the road. Often times on matters of great significance to a company, the company will want an independent lawyer to analyze the potential risks before embarking on a costly, time-consuming path or project.
The attorney-client privilege is another significant consideration in deciding whether or not to retain outside counsel. This is particularly significant in recent years because courts are now more inclined to obviate the attorney-client relationship between in-house counsel and the client:
Also, where the subject matter at issue is highly sensitive and of critical importance to the company, we may hire outside counsel to prepare legal memoranda to in order to assure preservation of the attorney-client privilege. The recent willingness of some courts to deny attorney-client privilege to in-house lawyers and their clients make it incumbent on in-house counsel to carefully evaluate the risks and benefits attendant to outside counsel versus in-house counsel written legal advice.[12]
If retention of the attorney-client privilege is critically important, then the company is probably best served getting a written opinion from outside counsel rather than their in-house legal department.
Often firms will ask for a written
legal opinion so they can bring it to corporate meetings and report on contract
administration or litigation issues. This can be particularly useful for
foreign clients who are not familiar with
2.
Delivering an
Written Legal Opinion that Meets the Client's Needs and Protects the Attorney
Providing the Opinion
Having established the parameters of competence required to render a written legal opinion without getting into trouble, as well as some of the reasons why a client may desire such an opinion, we will now turn to the substance of the opinions themselves. The focus of the author is the fulcrum on which the perceived utility of any written legal opinion will turn: the writer is focused either on adding value to the client's business on the one hand, or rendering an opinion that is liability-proof because it is bereft of unqualified assertions on the other. Striking the proper balance is naturally the key. Outside counsel's priority, however, should be answering the client's questions to the fullest extent possible.
As discussed above, people seek written legal opinions for a variety of reasons, but more often than not the opinion-seeker needs help making one or many complex decisions. As such, a legal opinion that is all caveat and qualification is of limited utility:
Usually, legal advice is an opinion, not a matter of certainty. A client should receive the lawyer's opinion, not conjecture or caveat. A lawyer need not advise or caution regarding every possible alternative, but only of those there is reason to believe may result in adverse consequences. The lawyer, who is unsure of his or her advice, usually should inform the client of the alternatives and their consequences.[13]
It is not uncommon for in-house lawyers to complain that their outside counsel provide rambling opinion letters that contain paragraph after paragraph of reservations without ever actually answering the question asked. Worse yet, the question may be answered in a way that points the client down a path the client would prefer to avoid. Like any other successful business, successful outside counsel know their clients' institutional cultures and are sure to reach a mutual understanding as to the scope of their clients' inquiries.
Fortunately these problems are easy to avoid. If outside counsel is dealing with a newer client, particularly in the area of contract disputes, then one must get a sense of the client's appetite for litigation. Some clients are more willing to fight than others. As the time and expense of litigation increases, parties look to their lawyers to find ways to resolve contract disputes without recourse to litigation, and even arbitration is often the last resort: “While [conventional] arbitration tends to be somewhat less formal than litigation, in that the rules of procedure and evidence are relaxed, increasingly it looks quite a bit like litigation, and may cost as much too.”[14]
If a new or existing client needs a written opinion regarding a contract dispute, then the lawyer answering the questions needs to understand how that client values the money it may ultimately recover in litigation in light of the resources it may have to expend to get there. Some clients simply will not entertain the notion of protracted litigation. While there are certainly instances where disputants may be sacrificing significant monies to which they are legally entitled as a result of their aversion to litigation, the costs of litigation are very high when one considers all the resources, beyond just the law firm's monthly bills, that a party must commit to prosecute a or defend against any complex civil action. Many modern organizations would prefer that their resources be dedicated to moving their business forward rather than fighting over the fallout of business past. And, of course, maintaining business relationships is a significant consideration in this regard, particularly in the private sector.
In order to effectively address a client's question, it is important to include a clear statement of scope and purpose at the beginning of any legal opinion. For outside counsel, the exercise of writing a statement outlining the lawyer's understanding of the question presented and the relevant facts will help outside counsel identify gaps, inconsistencies, and assumptions that are necessary to give a complete answer. Where outside counsel is able to identify these problems early on and address them with client before he or she labors too long on mistaken presumptions, the client will realize a savings in time and money, a well as an increase in the utility of the opinion. And of course, setting forth the limits of a written opinion ensures that the opinion giver cannot be held liable for any misuse of that opinion.
For the opinion recipient, a clear statement of scope and purpose ensures that outside counsel answered the question asked, or helps the opinion recipient realize that they asked the wrong question. On the other side of the liability issue, clear limitations on the scope of a written opinion helps to ensure that the opinion is not misconstrued by the recipient or others who might read the opinion down the road. There is simply no question that both inside and outside counsel benefit greatly from a clear statement of scope and purpose for any written legal opinion.
Another disappointment expressed by in-house counsel is the unwillingness of outside counsel to provide an accurate estimate of projected litigation costs for clients. A cited justification for outside counsel refusing to provide this information is that there are too many uncertainties inherent in certain pieces of litigation. As such, they are unwilling to provide even a ballpark estimate. This is bad practice. First, everyone understands that litigation inherently presents potential cost drivers at every turn, from the court to opposing counsel to the client themselves. Nonetheless, it is possible to give a realistic range of costs with the variables stated for evaluation on an iterative basis. A flat refusal to provide an estimated range of costs might therefore indicate that outside counsel does not fully understand the relevant legal landscape. Second, in the contract disputes context, clients are typically businesses that need to be able to realistically project cash flow. Litigation costs can account for a significant portion of a company's cash flow and estimates are thus simply necessary.
II. Written Opinions to a Third-Party per the
Request of a Client
A. General Considerations
Third-party legal opinions are less frequent in the construction industry than other areas such as structured finance, tax, and international trade. Third-party legal opinions can carry greater risks, however, and thus they merit some discussion here. In addition, a national practice with respect to third-party opinions has been growing for some time now.
The law makes attorneys responsible not just for the advice given to their clients, but also to advice reasonably and foreseeably relied upon by those who are not clients of the attorney.[15] On the one hand, it makes sense to hold attorneys liable when the reliance is foreseeable and reasonable. On the other hand, there is a risk of client prejudice if the rule goes so far as to restrict reasonably zealous representation. The Restatement comments regarding liability for non-client reliance demarcate the interpretative battle lines:
Lawyers regularly act in disputes and transactions involving nonclients who will foreseeably be harmed by inappropriate acts of the lawyers. Holding lawyers liable for such harm is sometimes warranted. Yet it is often difficult to distinguish between harm resulting from inappropriate lawyer conduct on the one hand and, on the other hand, detriment to a nonclient resulting from a lawyer's fulfilling the proper function of helping a client through lawful means. Making lawyers liable to nonclients, moreover, could tend to discourage lawyers from vigorous representation. Hence, a duty of care to nonclients arises only in the limited circumstances described in the Section. Such a duty must be applied in light of those conflicting concerns.[16]
A client's request for an opinion that will be shown to a third party should not be taken lightly.
First, there is no attorney-client privilege between the opinion-giver and the nonclient because the requisite relationship does not exist. Furthermore, deliberate transmittal of the opinion, either by the attorney or the client, waives the attorney-client as between the opinion-giver and the client. As discussed above, the need for a privileged evaluation of a given situation is often a primary consideration in determining whether a written opinion of outside counsel is necessary and/or appropriate. As such, the lack of privilege in third-party opinions should be analyzed carefully in light of all the facts and circumstances.
Second, it is important for both sides to consider the reasons for using outside counsel to deliver a written opinion for the use of a third party, particularly because no privilege is available. If it is not outside counsel's expertise that is required, then it may be that the parties to the underlying transaction are looking for the deep pockets of a law firm to guarantee the success of the transaction:
A common objection to receiving a closing opinion from an inside counsel is that it precludes a cause of action and possible recovery from the hoped-for deep pockets of an outside law firm. Where the opinion giver is inside counsel, the recipient may be less inclined to pursue a cause of action because: (i) "if the deal has gone sour... an additional cause of action against the same (possibly financially troubled) entity is of little value"; (ii) in most instances, the in-house lawyer will not have the deep pockets—either personally or in the form of professional liability insurance—to satisfy a sizable judgment; and (iii) intentional fraud—and not negligence—may be the only viable cause of action against the opinion giver. The value to opinion recipients of an additional cause of action and source of recovery arising out of an opinion from outside counsel (rather than inside counsel) "may prove illusory, since litigation against law firms on opinion letters is rare and such suits have not been warmly greeted by the courts."[17]
Attorney liability for the third-party opinion should probably not be the primary objective in procuring such an opinion. Outside counsel should be equally cognizant of the client's primary considerations in requesting the opinion.
In light of these considerations, it is again prudent, for all parties, to ensure a clear statement of scope and purpose. Third-party opinions can be useful in facilitating transactions, provided that all parties to the transaction and the legal opinion supporting it are aware of all the inherent risks and potential liabilities. The best way to ensure a continued business relationship is for everyone to be frank about their expectations at the outset.
B.
National
Practice Developing Regarding Third-Party Legal Opinions
Lawyers may look to several sources, such as treatises and bar association reports, for guidance in drafting and reviewing third-party opinions.[18] Of these sources, the most widely regarded are (1) the TriBar Third-Party Report; (2) the ABA Legal Opinion Principals Report; and (3) the Restatement (Third) of the Law Governing Lawyers.[19] While each of these publications were prepared by different groups, all agree that customary practice establishes the scope of responsibility for the lawyer delivering the third-party opinion.[20] The TriBar Third-Party Report further articulates that customary practice "affects not only the conduct of the opinion giver but also that of the opinion recipient."[21]
The TriBar Third-Party Report describes customary practice as follows:
Customary practice establishes the ground rules for rendering and receiving opinions and
thus allows the communication of ideas between the opinion giver and counsel for
the opinion recipient without lengthy descriptions of the diligence process,
detailed definitions of the terms used and laborious recitals of standard, often
unstated, assumptions and exceptions. Thus, in opinion practice, customary
practice is an important professional tool.
Unless
otherwise indicated, an opinion recipient is entitled to assume that the
opinion giver has followed customary practice in rendering an opinion.
Reciprocally, an opinion giver is entitled to assume that the opinion recipient
understands customary practice and recognizes that it has been followed in
preparing the opinion letter.
[22]
Customary practice therefore involves the use of unstated
exceptions, assumptions and limitations, which permit the opinion-giver and
opinion-recipient to share common understanding regarding an opinion letter.[23] Accordingly,
customary practice is effective only if all of the relevant parties understand
the customary practice in the same way.[24] For example, the customary practice in
The ABA cited three specific factors underlying the need to move towards an articulated national customary practice: (1) claims based on third-party opinions are on the rise; (2) resources for guiding third-party legal opinion practice use inconsistent language; and (3) reports guiding opinion practice focus on certain practice areas, such as finance and real estate transactions, and do not address other practice areas that may also require third-party opinions.[26] It is believed that a national approach to customary practice will foster better communication and lower liability concern by promoting uniformity in opinion terms and the standards of care to be employed by the opinion giver and recipient.[27]
In 1991, the Business Law Section of the
The effort to
develop a national customary practice made significant progress with the
publication of the Statement on
the Role of Customary Practice in the Preparation and Understanding of
Third-Party Legal Opinions.[32] The
Statement, published in 2008, is approved by over twenty-five bar and
lawyer groups, including the Legal Opinions Committee of the Section of
Business Law of the
Customary
practice permits an opinion giver and an opinion recipient (directly or through
its counsel) to have common understandings about an opinion without spelling
them out. The use of customary practice does this in two principal ways:
1. It
identifies the work (factual and legal) opinion givers are expected to perform
to give opinions. Customary practice reflects a realistic assessment of the
nature and scope of the opinions being given and the difficulty and extent of
the work required to support them.
2. It provides
guidance on how certain words and phrases commonly used in opinions should be understood.
Customary practice may expand or limit the plain meaning of those words and
phrases.[34]
The Statement is helpful in that it addresses customary practice across legal disciplines and asserts that customary practice should always apply to third-party opinions.[35] As such, the Statement promotes uniformity in the terms and standards of third-party opinion practice. However, the usefulness of the Statement depends on whether the customary practice has been sufficiently described and is understood by all involved in a particular transaction.[36] Nevertheless, the Statement has been regarded as the big step forward in the movement to develop a national customary practice and can be a guide for lawyers who prepare and review third-party opinions.[37]
III. Conclusion
With regard to written opinions to a client, inside and outside counsel both seek to meet the needs of the same client. The major difference is that outside counsel relies on inside counsel to communicate the client's needs and related facts. And, of course, inside counsel is the client from the perspective on outside counsel. As such, communication between the parties is paramount in outside counsel's ability to add value to the client's business concerns. Clear, frequent, and open communication will allow outside counsel to deliver a privileged opinion that takes into consideration all the relevant facts and the client's general disposition relative to the circumstances.
Third-party opinions become much more complicated because they are not privileged and implicate the rights and interests of more parties than just the client of the attorney rendering the opinion. All parties, including the law firm, should consider the need for the opinion carefully. In light of the significant variables surrounding third-party legal opinions, a national practice is emerging that looks to promote uniformity and, ultimately, fewer surprises. The Statement undoubtedly provides the largest available consensus on best practices in this regard.
# 8730849_v3
[1] Model Rules of
Prof'l Conduct R. 1.1 (2002).
[2] Smart v. Local 702 Int'l Bhd.. of Elec.
Workers, 562 F.3d 798, 810 (7th Cir. 2009) ("In Illinois, a claim for
legal malpractice requires a showing of four elements: “(1) the existence of an
attorney-client relationship that establishes a duty on the part of the
attorney; (2) a negligent act or omission constituting a breach of that duty; (3)
proximate cause; and (4) damages.”); Air
Measurement Techs., Inc. v. Akin Gump Strauss Hauer & Feld, L.L.P., 504
F.3d 1262, 1268-69 (Fed. Cir. 2007) ("Under Texas state law, the elements
of a malpractice claim are (1) an attorney owed plaintiff a duty stemming from
the attorney-client relationship, (2) the attorney breached that duty, (3) the
breach proximately caused plaintiff's injuries, and (4) damages."); Achtman v. Kirby, McInerney & Squire,
LLP, 464 F.3d 328, 337 (2d Cir. 2006) ("To state a claim for legal
malpractice under New York law, a plaintiff must allege: (1) attorney
negligence; (2) which is the proximate cause of a loss; and (3) actual
damages."); In re Witko, 374
F.3d 1040, 1043-44 (11th Cir. 2004) ("Under Florida law, a cause of action
for legal malpractice has three elements: (1) the attorney's employment; (2)
the attorney's neglect of a reasonable duty; and (3) the attorney's negligence
was the proximate cause of loss to the client.” (citation omitted)); Athridge v.
[3]
[4] McKnight v.
Dean, 270 F.3d 513, 518 (7th Cir. 2001).
[5] Sierra Fria
Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 179-80 (1st Cir.1997).
[6] Transcraft,
Inc. v. Galvin, Stalmack, Kirschner & Clark, 39 F.3d 812, 815 (7th Cir.
1994).
[7] Praxair, Inc.
v. Hinshaw & Culbertson, 235 F.3d 1028, 1031 (7th Cir. 2000) (citations
omitted).
[8] See Ronald E. Mallen & Jeffrey M. Smith, 2
Legal Malpractice § 20:10 (2008 ed.) [hereinafter "Legal Mal."].
[9] See Section
II.A. supra.
[10] Gregg R. Narber
& Sarah J. Pitts, 2 Successful Partnering Between Inside and Outside
Counsel §§ 45:17, 45:41 (Apr. 2009).
[11] See id.
[12]
[13] Legal Mal.,
supra note 8, at § 24:5 (citations
omitted).
[14] Jean R. Sternlight, Is Binding Arbitration a Form of ADR?: An Argument That the Term “ADR”
Has Begun to Outlive Its Usefulness, 2000 J.
Disp. Resol. 97, 103-04 (2000).
[15] Restatement
(Third) of Law Governing Lawyers § 51 (2000) provides:
For
purposes of liability under § 48, a lawyer owes a duty to use care within the
meaning of § 52 in each of the following circumstances:
(1)
to a prospective client, as stated in § 15;
(2)
to a nonclient when and to the extent that:
(a)
the lawyer or (with the lawyer's acquiescence) the lawyer's client invites the
nonclient to rely on the lawyer's opinion or provision of other legal services,
and the nonclient so relies; and
(b)
the nonclient is not, under applicable tort law, too remote from the lawyer to
be entitled to protection;
(3)
to a nonclient when and to the extent that:
(a)
the lawyer knows that a client intends as one of the primary objectives of the
representation that the lawyer's services benefit the nonclient;
(b)
such a duty would not significantly impair the lawyer's performance of
obligations to the client; and
(c)
the absence of such a duty would make enforcement of those obligations to the
client unlikely; and
(4)
to a nonclient when and to the extent that:
(a)
the lawyer's client is a trustee, guardian, executor, or fiduciary acting
primarily to perform similar functions for the nonclient;
(b)
the lawyer knows that appropriate action by the lawyer is necessary with
respect to a matter within the scope of the representation to prevent or
rectify the breach of a fiduciary duty owed by the client to the nonclient,
where (i) the breach is a crime or fraud or (ii) the lawyer has assisted or is
assisting the breach;
(c)
the nonclient is not reasonably able to protect its rights; and
(d)
such a duty would not significantly impair the performance of the lawyer's obligations
to the client.
[16]
[17] Narber &
Pitts, 2 Successful Partnering
Between Inside and Outside Counsel § 45:18 (quoting Schwartz, The Case for In-House Opinion Letters, Bus. L. Today, Jan./Feb. 2002, at 59).
[18] See, e.g., Restatement (Third)
of the Law Governing Lawyers § 95 (2000); Arthur Norman Field & Jeffrey M. Smith, Legal Opinions in Business Transactions
(Practicing Law Institute, 2d ed. 2006); Donald
W. Glazer, Scott Thomas Fitzgibbon, & Steven O. Weise, Glazer and Fitzgibbon on Legal Opinions: Drafting,
Interpreting, and Supporting Closing Opinions in Business Transactions
(2d ed. 2001) [hereinafter referred to as "Glazer and Fitzgibbon on Legal Opinions"]; M. John Sturba, Jr.,
Drafting Legal Opinion Letters (2d
ed. 1992); ABA Committee on Legal Opinions, Guidelines for the Preparation
of Closing Opinions, 57 Bus. Law.
875 (Feb. 2002); TriBar Opinion Committee, Third-Party "Closing"
Opinions, 53 Bus. Law. 591
(Feb. 1998) [hereinafter "TriBar Third-Party Report"]; ABA Committee on Legal Opinions, Legal Opinion
Principles Report, 53 Bus. Law.
831 (Feb. 1998) [hereinafter "ABA Legal Opinion Principals Report"].
[19] See Narber &
Pitts, 2 Successful
Partnering Between Inside and Outside Counsel § 45:13 (discussing the
various resources available to guide third-party opinion practice). In a 1999 article published in ABA Business Law Today, Donald W.
Glazer, one of the authors of Glazer and
Fitzgibbon on Legal Opinions, stated
"[w]hen taken together, these documents — prepared by three different bar
groups — provide a comprehensive and internally consistent description of legal
opinion practice as it exists today. As such, they constitute the best sources
currently available on legal-opinion issues." Glazer further opined on the need to simplify
third-party opinion forms and streamline third-party opinion practice. See
Donald W. Glazer, It's Time to Streamline
Opinion Letters,
[20] TriBar Third-Party Report §1.4(a); ABA Legal Opinion Principals Report at 831; Restatement (Third) of the Law Governing Lawyers § 95 cmt. a,
c & e.
[21] TriBar Third-Party Report §1.4(a).
[22]
[23] Reade H. Ryan, Jr., Recipient Counsel Responsibilities and Concerns, 62 Bus. Law. 401, 406 (Feb. 2007).
[24]
[25] In September 2007, the Hawaii Bar Journal discussed the need to reach a national consensus
on customary practice. See Raymond S. Iwamoto,
[26] Thomas L. Ambro & Arthur Norman Field, The Legal Opinion Risk Seminar Papers,
62 Bus. Law. 397, 398 (Feb.
2007).
[27]
[28] American Bar Association, Third Party Legal Opinion Report, 47 Bus. Law. 167 (Nov. 1991) [hereinafter "ABA
Accord"].
[29]
[30] See Narber & Pitts, Successful Partnering
Between Inside and Outside Counsel § 45:14.
[31] American Bar Association, Guidelines
for the Preparation of Closing Opinions,
57 Bus. Law. 875 (2002).
[32] American Bar Association, Statement on the Role of Customary Practice in the Preparation and
Understanding of Third-Party Legal Opinions, 63 Bus. Law. 1277 (Aug. 2008) [hereinafter referred to as the
"Statement"].
[33]
[34]
[35]
[36] Narber &
Pitts, 2 Successful Partnering
Between Inside and Outside Counsel § 45:13.
[37]