Overview

Introducing the Updated Deskbook: Your Essential Guide to Third-Party Legal Opinions

The latest edition of the Deskbook is an indispensable tool for Pennsylvania business lawyers who give and receive third-party legal opinions. This edition updates the 2007 Update of the Pennsylvania Third-Party Legal Opinion Report, which was originally published in 1999. The 1999 Report introduced new model opinions and commentary on corporations, limited liability companies, and limited partnerships.

Since the 1999 Report, significant contributions have been made by the TriBar Opinion Committee (TriBar) and the American Bar Association Business Law Section (ABA). TriBar has issued reports on Uniform Commercial Code security interest opinions under Revised Article 9, the remedies opinion, and Delaware limited liability companies. The ABA's Legal Opinions Committee has published reports on inside counsel closing opinions and law office opinion practices. The Federal Regulation of Securities Subcommittee on Securities Law Opinions has also released several reports on opinions customarily issued in securities offerings. 

The legal landscape has also been shaped by litigation involving third-party legal opinions, such as Dean Foods Co. v. Pappathanasi, 18 Mass. L. Rptr. 598 (Mass. Super. 2004), which emphasized the importance of customary practice in determining liability. This case is discussed in the Annual Survey of the Law of Legal Opinions, 60 The Business Lawyer 1057 (2005).

The editors have updated the Deskbook and the 2007 Update with more current sources and references to other state bar reports where relevant.

Key Features of the Revised Deskbook

Narrowed Investment Company Act Opinion:

• The revised Report narrows the Investment Company Act opinion, aligning with recommendations from Donald W. Glazer and Stanley Keller's 2005 article, "Streamlined Form of Closing Opinion Based on the ABA Legal Opinion Principles."
  
  

Alternative Limitation for Future Assignees:

• This edition includes an alternative provision addressing the use of opinion letters by future assignees. With the expansion of Opinion Recipients to include mutual funds and hedge funds, and the inclusion of transaction documents in securitization, the provision details the basis on which future assignees may rely on an opinion.
  
  

Fraudulent Transfer Opinion and Other Provisions:

• A discussion on the inappropriateness of requesting a fraudulent transfer opinion has been added, with optional paragraphs regarding any financial interest of the Opinion Giver, a “no conflict” opinion, and the generic limitation removed. These changes reflect current practices and consensus within the legal community.
  
  

Comprehensive Guide for Practitioners and the Judiciary

This Report reflects customary practice in Pennsylvania for rendering and receiving basic opinions in most corporate and unsecured banking transactions. It aligns with national practices described in ABA and TriBar reports, serving as a crucial guide for legal practitioners, litigators, and judges in assessing the liability of opinion givers in transaction-related third-party legal opinions.

The Model Closing Opinion Letter (Annotated) provides clear explanations of the language and practices customarily used by Pennsylvania lawyers. It is based on an exemplar developed by the late William P. Hackney and incorporates insights from the TriBar Opinion Committee and the ABA's Legal Opinion Principles.

Additionally, the Deskbook includes:

• Fundamental statements of national opinion custom and practice
• The American Bar Association’s Third-Party Legal Opinion Guidelines and Legal Opinion Principles
• Closing Opinions of Inside Counsel
• The TriBar Report and TriBar’s remedies opinion report
  
  

This updated Deskbook is essential for anyone involved in the giving

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