Legal Opinions in Business Transactions (Excluding the Remedies Opinions) -- May 2005, Revised October 2007. The Corporations Committee of The State Bar of California Business Law Section

Appendices

Appendix A -- Glossary of Defined Terms

Defined Term Explanation
"1933 Act" Securities Act of 1933, as amended, 15 U.S.C. §§ 77a-77aa
"1934 Act" Securities Exchange Act of 1934, as amended, 15 U.S.C. §§ 78a - 78mm
"1940 Act" Investment Company Act of 1940, as amended, 15 U.S.C. §§ 80a-1 to 80a-64
"1989 Report" Committee on Corporations, State Bar of California, 1989 Report of the Committee on Corporations Regarding Legal Opinions in Business Transactions in 1990 CALIFORNIA OPINION REPORTS (1990) and in 45 BUS. LAW. 2169 (1990)
"2002 Opinion Reports" Business Law Section & Real Property Section, State Bar of California, CALIFORNIA OPINION REPORTS (2002)
"ABA Committee" Legal Opinions Committee, American Bar Association
"ABA Formal Opinion 335" ABA Committee on Ethics and Prof'l Responsibility, Formal Op. 335 (1974), 60 ABA JOUR. 488 (1974)
"ABA Guidelines" Committee on Legal Opinions, American Bar Association, Guidelines for the Preparation of Closing Opinions, 57 BUS. LAW. 875 (2002)
"ABA Model Rules" ABA Model Rules of Professional Conduct (2002)
"ABA Principles" Committee on Legal Opinions, Section of Business Law, American Bar Association, Legal Opinion Principles, 53 BUS. LAW. 831 (1998)
"Accord" Committee on Legal Opinions, American Bar Association, Third-Party Legal Opinion Report, including the Legal Opinion Accord, of the Section of Business Law, American Bar Association, 47 BUS. LAW 167 (1991)*
"Agreement" The contract or other written instrument evidencing obligations of the Company and pursuant to which the opinion is being rendered
"articles" When referring to the organizational document of the Company, the articles of incorporation or the certification of incorporation, as the case may be, and all amendments and restatements thereof, including all certificates of determination of the rights, preferences, privileges, and restrictions of outstanding shares or any class or series of shares
"Ballantine & Sterling" BALLANTINE & STERLING, CALIFORNIA CORPORATION LAWS (R. Bradbury Clark, editor) (4th ed. 2004)
"Business Law Section" Business Law Section of the State Bar of California
"Committee" Corporations Committee of the Business Law Section of the Business Law Section of the State Bar of California
"Company" The business entity that is the subject of the opinion referred to in the opinion letter.
"CSL" California Corporate Securities Law of 1968, as amended, CAL. CORP. CODE §§ 25000 -- 25707
"Exhibit 5 opinion" A legal opinion included as part of a registration statement filed under the 1933 Act pursuant to Item 601(b)(5)(i) of Regulation S-K under the 1933 Act
"FASB" Financial Accounting Standards Board
"Field Treatise" Arthur Norman Field, LEGAL OPINIONS IN BUSINESS TRANSACTIONS (2003)
"Franchise Tax Board" California Franchise Tax Board
"Fuld" James Fuld, Legal Opinions in Business Transactions--An Attempt to Bring Some Order Out of Some Chaos, 28 BUS. LAW. 915 (1973)
"GCL" California General Corporation Law, CAL. CORP. CODE §§ 100-2319
"Glazer & FitzGibbon" Donald W. Glazer, Scott FitzGibbon & Steven O. Weise, GLAZER & FITZGIBBON ON LEGAL OPINIONS: DRAFTING, INTERPRETING AND SUPPORTING CLOSING OPINIONS IN BUSINESS TRANSACTIONS (2d ed. 2001)
"Marsh's California Corporation Law" Harold Marsh, Jr., R. Roy Finkle, and Larry W. Sonsini, MARSH'S CALIFORNIA CORPORATION LAW (4th ed. 2004)
"Material Agreements" The list of contracts and other written instruments that the parties agree are material to the transaction and are the subject of specific portions of the opinion letter.
"Negative Assurance Report" Special Report of the Task Force on Securities Law Opinions, ABA Section of Business Law, Negative Assurance in Securities Offerings, 59 BUS. LAW 1513 (2004)
"opinion giver" The lawyer or law firm in whose name an opinion is signed.
"opinion preparer(s)" The lawyers in the law firm who prepare an opinion letter.
"opinion recipient" The addressee of the opinion letter, and others, if any, expressly granted permission by the opinion giver to rely on the opinion letter.
"Real Estate Report" Real Property Law Section, State Bar of California & Real Property Section, Los Angeles County Bar Association, Legal Opinions in California Real Estate Transactions (1987), 42 BUS. LAW. 1139, 1156 (1987)
"Remedies Report" Opinion Committee, Business Law Section, State Bar of California, Report on Third-Party Remedies Opinions (September 2004)
"Report" Corporations Committee, Business Law Section, State Bar of California, Legal Opinions in Business Transactions (Excluding the Remedies Opinion)
"Restatement" RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2000)
"Rules of Conduct" California Rules of Professional Conduct
"SEC Filings Report" Special Report of the Task Force on Securities Law Opinions of the ABA Section of Business Law, Legal Opinions in SEC Filings, 59 BUS. LAW 1505 (2004)
"SEC" Securities and Exchange Commission
"Secretary of State" California Secretary of State
"TriBar Report" TriBar Opinion Committee, Third-Party "Closing" Opinions, 53 BUS. LAW. 591 (1998)

Appendix B -- Table of Authorities

 Table of authorities not included in this version, as there are no corresponding page numbers.  For a usable Table of Authorities, see the version posted on the  American Bar Association's website

Appendix C -- Bibliography

Legal Opinions In Business Transactions

  1. Ad Hoc Committee on Third-Party Legal Opinions of the Business Law Section of the Washington State Bar Association, Report on Third-Party Legal Opinion Practice in the State of Washington (1999).
  2. American Bar Association, The Silverado Summit: The Standardization of Legal Opinions -- Order Out of Chaos, Course Materials (Nov. - Dec. 1989).
  3. American College of Real Estate Lawyers Attorneys' Opinion Committee and the American Bar Association Section of Real Property, Probate and Trust Law Committee on Legal Opinions in Real Estate Transactions, Real Estate Opinion Letter Guidelines, 38 REAL PROP. PROB. & TR. J. 241 (2003).
  4. Association of the Bar of the City of New York, Real Property Law Committee and New York State Bar Association Real Property Law Section, Attorney Opinion Letters Committee, Mortgage Loan Opinion Report (Nov. 8, 1989).
  5. Babb et al, Legal Opinions to Third Parties in Corporate Transactions, 32 BUS. LAW. 553 (1977).
  6. Business Law Section of the State Bar of California, Report on the Third-Party Legal Opinion Report of the ABA Section of Business Law (May 1992).
  7. Business Law Section of the State Bar of California, Report of the Uniform Code Committee Regarding Legal Opinions in Personal Property Secured Transactions, 44 BUS. LAW. 791 (1989).
  8. Business Law Section of the State Bar of California, Seventh Annual Spring Program: Legal Opinions, Due Diligence and the Attorney's Responsibilities in Business Transactions (1985).
  9. Business Law Section, Real Property Section, State Bar of California, California Opinion Reports (Jan. 2002).
  10. BUSINESS OPINIONS 1990 (PLI Corporate Law and Practice Course Handbook Series Nos. 674 & 675, 1990).
  11. California Continuing Education of the Bar, Attorney Opinion Letters, Program Handbook (Oct. - Nov. 1989).
  12. California Continuing Education of the Bar, California Real Estate Finance Practice: Strategies & Forms §§ 8.1--8.90 (Cal. CEB 2003).
  13. California Continuing Education of the Bar, Drafting Business Contracts: Principles, Techniques & Forms, §§ 12.1--12.31 (Cal. CEB 2002).
  14. Cummings, Jr., The Range of Legal Tax Opinions, with Emphasis on the "Should" Opinion, TAX NOTES 1125 (February 17, 2003).
  15. DRAFTING LEGAL OPINION LETTERS (M. John Sterba ed. 1988).
  16. Erickson, Legal Opinions in Sale-Leaseback Transactions, 4 C.E.B. CAL. BUS. LAW PRACTITIONER 112 (Summer 1989).
  17. Field & Ryan, Legal Opinions in Corporate Transactions (Matthew Bender 1997).
  18. Field, Legal Opinions in Business Transactions, Practising Law Institute, §13.6 (2003).
  19. Field, The New Business Opinion Legal Rules, N.Y. L.J., Apr. 9, 1992, at Outside Counsel p.1.
  20. FitzGibbon & Glazer, Legal Opinions in Corporate Transactions: The Opinion that Stock is Duly Authorized, Validly Issued, Fully Paid and Nonassessable, 43 WASH. & LEE L. REV. 863 (1986).
  21. FitzGibbon & Glazer, Legal Opinions in Corporate Transactions: Opinions Relating to Security Interests in Personal Property, 44 BUS. LAW. 655 (1989).
  22. FitzGibbon & Glazer, Legal Opinions in Corporate Transactions: The Opinion on Agreements and Instruments, 12 J. CORP. LAW 657 (1987).
  23. FitzGibbon & Glazer, Legal Opinions on Incorporation, Good Standing, and Qualification to Do Business, 41 BUS. LAW. 461 (1986).
  24. Freeman, Legal Opinions in Business Transactions, 3 C.E.B. CAL. BUS. LAW PRACTITIONER 1 (Winter 1988).
  25. Freivogel, The Ethics and Lawyer Liability Issues Raised by Third-Party Opinion Letters, 228--29, 230--32 (Practising Law Institute, Corporate Law and Practice Course Handbook Series, PLI Order No. B0-002V, 1998).
  26. Fuld, Lawyers' Standards and Responsibilities in Rendering Opinions, 33 BUS. LAW. 1295 (1978).
  27. Fuld, Legal Opinions in Business Transactions -- An Attempt to Bring Some Order Out of Some Chaos, 28 BUS. LAW. 915 (1973).
  28. Glazer et al., GLAZER & FITZGIBBON ON LEGAL OPINIONS: DRAFTING, INTERPRETING AND SUPPORTING CLOSING OPINIONS IN BUSINESS TRANSACTIONS § 8.2 (2d ed. 2001).
  29. Greenberg, Third Party Legal Opinions Under ABA Accord, N.Y. L.J., Aug. 16, 1993, at Outside Counsel p. 1.
  30. Groh, A Checklist for Preparing Opinion Letters in Standard Corporate Transactions, 4 C.E.B. CAL. BUS. LAW PRACTITIONER 137 (Fall 1989).
  31. Gruson & Kutschera, Opinion of Counsel on Agreements Governed by Foreign Law, 19 VANDERBILT J. TRANSNATIONAL LAW 515 (1986).
  32. Gruson, The Remedies Opinion in International Transactions, 27 INT'L LAW. 911 (1993).
  33. Harris, Personal Liability for In-House Legal Opinions: Is it Worth the Risk, Business Law News, Volume XXIV, Issue 2 (2003).
  34. Hollyfield, American Law Institute & American Bar Association, Third-Party Opinion Letters for Mortgage Loans, Course of Study Materials (Jan. 2004).
  35. Jessen et al., Third-Party Legal Opinions: An Introduction to "Customary Practice," 35 CREIGHTON L. REV. 153 (2001).
  36. Kraus, Courts Give California Lawyers More Food For Thought About Remedies, Opinions, 2 INSIGHTS 28 (1988).
  37. Legal Opinions to Third Parties: An Easier Path, A Report by Special Committee on Legal Opinions in Commercial Transactions, New York County Lawyers' Association, 34 BUS. LAW. 1891 (1979). An Addendum -Legal Opinions to Third Parties: An Easier Path, A Report by Special Committee on Legal Opinions in Commercial Transactions, New York County Lawyers' Association, 36 BUS. LAW. 429 (1981). Second Addendum to Legal Opinions to Third Parties: An Easier Path, 44 BUS. LAW. 563 (1989).
  38. Levin, A User-Friendly Opinion for Real Estate Lawyers, 13 PROB. & PROP. (1999).
  39. Loomis, Bond Ratings; Legal Opinions are Falling Out of Favor, N.Y. L.J., June 14, 2001, at Corporate Update p.5.
  40. Note, Attorney Liability to Third Parties for Corporate Opinion Letters, 64 B.U.L. REV. 415 (1984).
  41. OPINION LETTERS OF COUNSEL (PLI Corporate Law and Practice Course Handbook Series No. 583, 1987).
  42. Preble, American Law Institute & American Bar Association, The Remedies Opinion Revisited: A Primer for Real Estate Lawyers, Course of Study Materials (Apr. 2003).
  43. Quale & Weimer, Legal Opinions in Corporate Transactions Affected by FCC Regulation: An Economic Approach, 51 FED. COMM. L.J. 773 (1999)
  44. Real Property Law Section of the State Bar of California and Real Property Section of the Los Angeles County Bar Association, Legal Opinions in California Real Estate Transactions, 42 BUS. LAW. 1139 (1987), and 22 REAL PROP. PROB & TR. J. 373 (1987).
  45. Report of the Special Joint Committee on Lawyers' Opinions in Commercial Transactions of the Maryland State Bar Association, Inc. and the Bar Association of Baltimore City (Jan. 18, 1989).
  46. Report of the State Bar of Arizona Corporate, Banking and Business Law Section Subcommittee on Rendering Legal Opinions in Business Transactions (Feb. 1, 1989).
  47. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2000).
  48. Section of Business Law, American Bar Association, Committee on Legal Opinions, Closing Opinions of Inside Counsel, 58 BUS. LAW. 1127 (2003).
  49. Section of Business Law, American Bar Association, Committee on Legal Opinions, Guidelines for the Preparation of Closing Opinions, 57 BUS. LAW. 875 (2002).
  50. Section of Business Law, American Bar Association, Committee on Legal Opinions, Law Office Opinion Practices, 60 BUS. LAW. 327 (2004).
  51. Section of Business Law, American Bar Association, Committee on Legal Opinions, Legal Opinion Principles, 53 BUS. LAW. 831 (1998).
  52. Section of Business Law, American Bar Association, Third-Party Legal Opinion Report, Including the Legal Opinion Accord, 47 BUS. LAW. 167 (1991).
  53. State Bar of California Business Law Section Opinions Committee, Third-Party Remedies Opinions (2004) (http://www.calbar.org/buslaw/opinions).
  54. Stillman, American Law Institute & American Bar Association, A "No Substantive Consolidation, No Fraudulent Conveyance" Opinion Letter from Counsel to the Bankruptcy Remote Entity, Course of Study Materials (Jan. 2002).
  55. Subcommittee on Legal Opinions of the Transactional Practice Committee of the Federal Communications Bar Association, Report of the Subcommittee on Legal Opinions of the Transactional Practice Committee of the Federal Communications Bar Association, 48 FED. COMM. L.J. 389 (1996).
  56. Symposium, Rethinking Legal Opinion Letters: Determining the Underlying Facts: An Epistemological Look at Legal Opinions in Corporate Transactions, 1989 COLUM. BUS. L. REV. 343 (1989).
  57. Symposium, Rethinking Legal Opinion Letters: Opinions of Counsel in Corporate Transactions: Opinions on Compliance with the Company's Charter, By-Laws, and Contractual Obligations, 1989 COLUM. BUS. L. REV. 323 (1989).
  58. Symposium, Rethinking Legal Opinion Letters: The Corporate Opinion in International Transactions, 1989 COLUM. BUS. L. REV. 427 (1989).
  59. Symposium, Rethinking Legal Opinion Letters: Transnational Opinions: Selecting and Collaborating with Foreign Counsel, 1989 COLUM. BUS. L. REV. 413 (1989).
  60. Symposium, The Lawyer's Duties and Liabilities to Third Parties: Attorney Opinion Letters: Model Rule 2.3 and the Texas Experience, 37 S. TEX. L. REV. 1127 (1996).
  61. TriBar Opinion Committee, Opinions in the Bankruptcy Context: Rating Agency, Structured Financing, and Chapter 11 Transactions, 46 BUS. LAW. 717 (1991).
  62. TriBar Opinion Committee, Third-Party "Closing" Opinions, 53 BUS. LAW. 591 (1998).
  63. TriBar Opinion Committee, U.C.C. Security Interest Opinions - Revised Article 9, Appendix B, 58 BUS. LAW. 1450 (2003).
  64. TriBar Opinion Committee, The Remedies Opinion - Deciding When to Include Exceptions and Assumptions, 59 BUS. LAW. 1483 (2004)
  65. Walker, Legal Malpractice Liability to Non-Clients, 11 L.A. LAW. 54 (1988).

Responses to Audit Inquiries

  1. ABA Statement of Policy Regarding Lawyers' Responses to Auditors' Request for Information - Second Report of the Committee on Audit Inquiry Responses Regarding Initial Implementation, 32 BUS. LAW. 177 (1976).
  2. Ad Hoc Committee on OTS Attorney Inquiry Letters, Guidance for Lawyers Responding to the OTS Revised Attorney Letter, 50 BUS. LAW. 607 (1995).
  3. Allen, Walking Through the Minefield -- Ethical and Liability Risks in Auditor Response Letters, 77 FLA. BAR J. 10 (2003).
  4. American Bar Association, Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information, 31 BUS. LAW. 1709 (1976).
  5. Fuld, Lawyers' Responses to Auditors - Some Practical Aspects, 44 BUS. LAW. 159 (1988).
  6. Hooker, Lawyers' Responses to Audit Inquiries and the Attorney-Client Privilege, 35 BUS. LAW. 1021 (1980).
  7. Sharp & Stanger, Audit-Inquiry Responses in the Arena of Discovery Protected by the Work-Product Doctrine, 56 BUS. LAW. 183 (2000).

Securities Law Opinions

  1. American Bar Association, Comm. on Ethics and Professional Responsibility, Formal Op. 335 (1974).
  2. Bilodeau, New Questions Over Lawyering in Enron "True Sale" Opinions at Issue in Probe of Controversial Deals, LEGAL TIMES, Sept. 30, 2002, at Legal Business p.1.
  3. Boston Bar Association Securities Law Committee, Report by Boston Bar Association Securities Law Committee on Securities Law Opinions in Exempt Offerings, 30 BOSTON B.J. 6 (1986).
  4. Corporations Committee of the Business Law Section of the State Bar of California, Guide to California Securities Law Practice (2003).
  5. Enron Examiner's Report Raises Questions About True Sale Opinions, TEX. LAW., Oct. 7, 2002, at 1.
  6. FitzGibbon & Glazer, Legal Opinions on Secondary Sales of Stock, 1988 COLUM. BUS. REV. 149 (1988).
  7. Jacobs, OPINION LETTERS IN SECURITIES MATTERS: TEXT -- CLAUSES -- LAW (1986).
  8. Jorgenson, Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.: The Supreme Court Abolishes Aiding and Abetting Liability Under Section 10(b): The End of an Era, Or a Break in the Action?, 47 OKLA. L. REV. 641 (1994).
  9. Landau, Legal Opinions Rendered in Securities Transactions, EIGHTH ANNUAL INST. ON SEC. REG. 3 (1977).
  10. Mendales, Looking Under the Rock: Disclosure of Bankruptcy Issues Under the Securities Laws, 57 OHIO ST. L.J. 731 (1996).
  11. Note, Liability of Attorneys for Legal Opinions Under the Federal Securities Laws, 27 BOSTON C.L. REV. 325 (1986).
  12. OPINIONS IN SEC TRANSACTIONS (PLI Corporate Law and Practice Course Handbook Series No. 623, 1988).
  13. Patrick, The Liability of Lawyers For Fraud Under the Federal and State Securities Laws, 34 ST. MARY'S L.J. 915 (2003).
  14. Rice & Steinberg, Legal Opinions in Securities Transactions, 16 J. CORP. L. 375 (1991).
  15. Rice, Potential Liabilities for Legal Opinions in Securities Transactions, 31 REV. SEC. & COMMODITIES REG. 239 (1998).
  16. Robbins et al., American Law Institute & American Bar Association, Ethics and Professional Responsibility for Attorneys in Securities Transactions, Course of Study Materials (July 2002).
  17. Stewart, American Law Institute & American Bar Association, Liability for Securities Lawyers in the Post-Enron Era, Course of Study Materials (Jan. 2003).
  18. Task Force on Securities Law Opinions, ABA Section of Business Law, Legal Opinions in SEC Filings, 59 BUS. LAW. 1505 (2004).
  19. Task Force on Securities Law Opinions, ABA Section of Business Law, Negative Assurance in Securities Offerings, 59 BUS. LAW. 1513 (2004).
  20. Warren, The Primary Liability of Securities Lawyers, 50 SMU L. REV. 383 (1996).

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