Sample California Third-Party Legal Opinion for Business Transactions By the Opinions Committee of the Business Law Section of The State Bar of California

May, 2010

Introduction

The following sample third-party legal opinion (the "Opinion") has been prepared by the Opinions Committee (the "Committee") of the Business Law Section (the "Business Law Section") of the State Bar of California. The Committee has prepared the Opinion as an illustration of what an opinion following the precepts of the opinion reports of the Business Law Section might look like. There is not a single form of legal opinion that can be viewed as the "sole" or even for most cases the "best" or "preferred" form that lawyers should use. Consequently, the Opinion is intended as a sample and should not be construed as a prescriptive model.

The Committee chose as a transactional model an unsecured lending transaction involving a California corporation as the borrower, a California limited liability company as the guarantor, and transaction documentation governed by California law. While any number of transactional models could have been chosen, the Committee settled on a basic loan transaction largely because lending is an area of practice where third-party opinions are still commonly requested and delivered. The Committee believes that the chosen transaction allows it to illustrate certain opinions commonly given in a business transaction involving California corporations and limited liability companies. With the addition of appropriate assumptions and qualifications (and the deletion of others, such as those pertaining to usury if the transaction does not involve an opinion on the enforceability of the loan documents or their compliance with law), the Opinion can be used as a basis to prepare opinions in other contexts. For a sample opinion letter for a personal property secured loan transaction, see Report of the Uniform Commercial Code Committee of the Business Law Section of the State Bar of California on Legal Opinions in Personal Property Secured Transactions (2005), Appendix B.

The Opinion should be interpreted in accordance with the customary practice of lawyers giving opinions under (and advising those who receive opinions given under) California law as articulated in the various opinion reports of the Business Law Section and other professional associations, such as the American Bar Association's Section of Business Law and the TriBar Opinion Committee. Certain of these reports are listed in footnotes 1 and 4 of the Opinion. Practitioners may note that the Opinion itself does not specifically refer to customary practice; however, whether or not such a reference is made, any opinion, including an opinion in the form of this sample Opinion, should be interpreted in light of customary practice. Practitioners are encouraged to consult Appendix 7 of the State Bar of California Business Law Section's Report On Third Party Remedies Opinions (2007), which provides an extensive discussion of customary opinion practice. Similar discussions can be found in the publications of other bar organizations, including the TriBar Opinion Committee.

The Committee expresses its appreciation to the following individuals who composed the Drafting Committee primarily responsible for the preparation of this sample Opinion: Timothy G. Hoxie (chairman of Drafting Committee), James F. Fotenos, Matthew R. Gemello, Jerome A. Grossman, David M. Jargiello, F. Daniel Leventhal, Susan Cooper Philpot, Steven E. Sherman and Peter S. Szurley.


Copyright © 2010 The State Bar of California

Permission is hereby granted to members of the Business Law Section of the State Bar of California and purchasers of this Sample Opinion to make copies or extracts of it in connection with their practice of law but not for any commercial or other purpose.

The statements and views contained in this Sample Opinion are those of the Opinions Committee and are not necessarily those of the State Bar of California.

This Sample Opinion is made available with the express understanding that none of the State Bar of California, the Business Law Section and the Opinions Committee is engaged in rendering legal or other professional services in publishing it.