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Business Law Today

Speaking volumes
Reviewed by Stanley Keller
An update to a landmark treatise
Glazer and FitzGibbon on Legal Opinions, Third Edition
By Donald W. Glazer, Scott T. FitzGibbon, and Steven O. Weise
Aspen Publishers
2008, 1,500 pages, $285.00
ISBN 9780735560659

Lawyers who give, and those who advise clients on receiving, third-party closing opinions should be delighted at the recent publication of the Third Edition of Glazer and FitzGibbon on Legal Opinions. This landmark treatise holds a special place among legal treatises for its usefulness to practitioners through its combination of both in-depth analysis and focused practical advice. As such, it is a valuable resource and essential deskbook both to legal opinion experts and to everyday transactional lawyers who find themselves occasionally giving or reviewing a legal opinion.

The Third Edition of this leading work in the opinion field comes at a welcome time because of the significant changes that have taken place in legal opinion practice since publication of the Second Edition in 2002 and the increased exposure of lawyers to liability during that period. To cite a few examples of developments reflected in the new edition:
  • Trend Toward National Opinion Practice. Although earlier editions reflected the concern that there was a proliferation of state bar group reports that impeded development of a national consensus on opinion practice, the trend since the 2002 publication of the Second Edition has been toward development of a national consensus based upon acceptance of the ABA and TriBar reports as valuable sources of guidance on customary practice. We have seen during this period widening recognition of customary practice as the basis on which opinions are given and received. Except for publication of an annotated streamlined form of opinion through the Boston Bar Association, no state or similar bar group that previously had not issued a report has done so, and the Boston form, co-authored by Don Glazer and me, in fact was an effort to reflect in practice in a streamlined form the guidance of the ABA and TriBar reports. Reports issued by state bar groups that previously issued reports were in large part revisions to align them with the ABA and TriBar reports. This developing national consensus based on customary practice is thoroughly explored and documented in the Third Edition.

  • Focus on Risk Mitigation. With the expansion of lawyer exposure to liability, as evidenced by a greater number of suits against lawyers (although still relatively few in number, but in some cases involving huge dollar exposure), increased attention has been given to liability exposure and ways of mitigating risk. This attention has been taking place on a national level through programs run by a group organized under the auspices of the ABA representing various constituencies in the opinion process. One product of this attention has been the reexamination of factual confirmations requested of lawyers, such as no litigation confirmations, negative assurance, and, most recently imported from the EU, diligence memos. The Boston streamlined form attempted to address the first of these by narrowing the form of no litigation confirmation. The Third Edition addresses throughout these liability and risk mitigation issues.

  • New Opinion Reports. Several important reports have been issued by TriBar and the ABA that expand the understanding of the meaning of opinions. These reports include the TriBar reports on the remedies opinion, the most common opinions involving LLCs, and the meaning of the opinion that preferred stock is "duly authorized." They also include the ABA report on negative assurance to underwriters, which recently has been updated to reflect the changes arising from the SEC's securities offering reform initiative. In addition, California issued an important report that analyzed when, applying cost-benefit considerations, opinions were justified. These recent reports are reflected in the Third Edition. For example, Chapter Nine on The Enforceability Opinion has been extensively revised to reflect the TriBar Remedies Report and Chapter Eighteen on Negative Assurance has been added to pick up the learning of the ABA report on that subject.

  • Increased Use of Noncorporate Entities. With the expanded use of LLCs, opinions on LLCs have become increasingly important since the Second Edition. The Third Edition has a new chapter on LLC opinions. It includes helpful advice on the knotty problem non-Delaware lawyers face in giving opinions on Delaware LLCs arising from the significance of state contract law to LLCs in contrast to the statutory law governing corporations.

The Third Edition carries forward the book's tradition of including appendices with the most important and up-to-date reports of state and other bar groups so that these are readily available, both in print and electronically with the CD-ROM included with the book. Many of these reports are cited throughout the text and thus having them so readily available is especially helpful.

Don Glazer, the lead author, is a recognized dean of the legal opinion bar who has been instrumental in shaping legal opinion practice and is frequently called upon for his expertise in the area. Through his efforts, the treatise addresses the most important practical issues in a highly accessible style. He has been effectively supported by co-authors Professor Scott FitzGibbon, who brought an academic perspective to the original treatise, and by Steve Weise, a practicing lawyer, well-known for, among other things, his expertise in the Uniform Commercial Code and other commercial law subjects. Both Don and Steve are former chairs of the ABA Legal Opinions Committee and Don currently serves as co-chair of TriBar. The quality and authoritativeness of the views expressed by the authors have been enhanced by their practice of reaching out to a group of legal opinion experts to test those views. I have been fortunate to have been included among them.

The bottom line is that if you do not already own the treatise, rush out and purchase the Third Edition; if you already own a prior edition, you will want the new edition covering in depth the many developments that have taken place in this rapidly evolving area.

Keller is a partner at Edwards Angell Palmer & Dodge LLP in Boston. His e-mail is stanley.keller@eapdlaw.com.

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