Earlier this week, the BBA Council approved a Business Transactions Section request to endorse a “Statement of Opinion Practices” that would establish a national basis for the preparation and understanding of third-party legal opinion letters, or “closing opinions.” Keep reading to learn more about the BBA’s past work on closing opinions and this latest development.
In the late 1990s, the BBA’s former Business Law Section had a “Legal Opinions Committee” that worked on a range of issues related to the issuance and substance of closing opinions, which are delivered at the closing of a business transaction by counsel for one party to another party in order to satisfy a condition to the opinion recipient’s obligation to close. Specifically, between 1998 and 2005, the Committee worked to produce a streamlined form of opinion, building off of the ABA Legal Opinion Principles. The BBA Council adopted the Committee’s proposal and it eventually became a national model. You can read more about this in a 2005 Business Lawyer article drafted by Stanley Keller and Donald Glazer, who coordinated the preparation of the BBA’s Streamlined Form.
Additionally, in 2007, the BBA Council joined a number of other bar associations across the country in endorsing a “Statement on the Role of Customary Practice in the Preparation and Understanding of Third-Party Legal Opinions.” This proposal supported the use of customary practice in closing opinions as it permits an opinion giver and recipient to have shared understandings of an opinion without having to state them in the opinion, removing the need for burdensome lists of diligence procedures, definitions, exceptions, and assumptions where customary practice offers this content.
Now, more than a decade later, we are pleased to continue our efforts and leadership in this space, this time under the guidance of our Business Transactions Section, which grew out of the old Business Law Section and is currently co-chaired by Marc Mantell of Mintz Levin and Gitte Blanchett of Morgan Lewis. The Section Steering Committee considered the latest project produced by the Legal Opinions Committee of the American Bar Association’s Business Law Section and the Working Group on Legal Opinions Foundation to formulate a Statement of Opinion Practices, which would establish an updated national basis for the preparation and understanding of closing opinions. The project also included a document called the “Core Opinion Principles,” designed for use by those who want a separate document they can incorporate by reference or attach to a closing opinion.
After review and discussion, the Steering Committee voted to seek BBA endorsement of the proposal. Stanley Keller of Locke Lord, a key leader in the previous BBA closing opinion efforts, joined Section co-chair Marc Mantell in presenting the proposal to the BBA Council, explaining the value of having a national basis for these opinions as well as the importance of gaining broad support by entities like the BBA. By endorsing the proposal, the BBA joined a large number of other interested groups, including the Massachusetts Bar Association, the Tribar Opinion Committee, and the Business Law Sections of the Tennessee Bar Association, Virginia Bar Association, State Bar of Texas, and the Florida Bar to name a few.
We anticipate that the Statement and Core Opinion Principles will be published inThe Business Lawyer soon, and we look forward to being kept apprised by our Business Transactions about the impact this resource is having on the practice.
Legislative and Public Policy Manager
Boston Bar Association