By Mark D. Killian
The Business Law Section and the Real Property, Probate, and Trust Law Section have released a draft of their “Report on Standards for Third-party Legal Opinions of Florida Counsel” and are calling for comments.
The project, a collaboration of both sections’ legal standards committees, has been in the works for more than three years. It is intended to provide guidance to Florida attorneys who render third-party legal opinions and to both Florida and out-of-state attorneys who, on behalf of their clients, receive third-party legal opinions from Florida attorneys. It addresses the nature and meaning of the content of legal opinions and articulates the diligence required to render such opinions.
“The committees believe that the report will be a major step forward in the practice of third-party legal opinions in Florida and a great benefit to corporate and real estate practitioners throughout our state,” said Philip B. Schwartz of Miami, chair of the Business Law Section’s Legal Opinion Standards Committee and the chair of the steering committee (consisting of members of both the Business Law Section committee and the RPPTL committee), which is spearheading the effort.
The report updates and consolidates in a single integrated report all of the legal opinion standards that have previously been published by the Business Law and the RPPTL sections. That includes the Business Law Section’s the supplement to the 1991 report that was issued by the Business Law Section in 1996 on opinions under the Uniform Commercial Code, and the supplements to the 1991 report that were issued by the RPPTL Section in 1996 and 2004 relating to opinions in real estate transactions.
The report is available for download on the Business Law Section’s Web site at http://flabizlaw.org and on the Real Property, Probate and Trust Law Section’s Web site at www.rpptl.org.
Schwartz said the report is not a treatise, but rather is intended to be a practice guide that covers all aspects of third-party legal opinion customary practice in Florida.
· Covers opinions that are predicate to the remedies opinion, including sections on opinions on entity status and organization, authorization to transact business in Florida, entity power, authorization of the transaction, execution and delivery, no violation and no breach or default and no required governmental consents or approvals;
· Describes the committee’s views as to the meaning of the remedies opinion and regarding the qualifications to the remedies opinion that are appropriate to include in opinions rendered by Florida counsel under Florida customary practice;
· Sets forth the committee’s position on the no-litigation confirmation;
· Addresses opinions on particular substantive areas of commercial practice, including opinions with respect to securities, opinions with respect to collateral under the Uniform Commercial Code and opinions with respect to real estate transactions;
· Addresses opinions under Florida law regarding usury and choice of law;
· Includes guidance on matters that are common to all third-party legal opinions rendered by Florida counsel and on matters to consider when acting as local counsel.
Schwartz said the report also includes four illustrative opinion letter forms: an opinion letter to be used in a commercial lending transaction, an opinion letter to be used in a real estate lending transaction, an opinion letter to be used in connection with a share issuance by a Florida corporation, and an opinion letter to be used in a loan transaction when acting as local counsel.
The report also includes an illustrative form of certificate to counsel that can be used with each of the forms of opinion letters.
“These illustrative forms are annotated with guidance and with references to sections of the report where further information about the Florida customary practice regarding such opinion is described,” Schwartz said. “Further, unannotated word versions of the illustrative forms are expected to be posted in the near future for use by Florida attorneys in their opinion practices.
The report has been approved — subject to comment — by the executive councils of the Business Law Section and the Real Property, Probate and Trust Law Section.
Between now and June 30, the committees are soliciting comments to the report from attorneys who are knowledgeable about third-party legal opinion practices. E-mail comments to FloridaOpinions@gmail.com.
The committees also will hold two public forums to solicit comments regarding the report: May 27 in conjunction with the Real Property, Probate and Trust Law Section meetings being held on that date, and June 24 in conjunction with the Business Law Section meetings being held on that date. The committees also plan to present a CLE program in May regarding the report.
Following the comment period, it is expected that the committees will review the comments and determine whether to make any additional changes to the report.
Schwartz said more than 40 lawyers participated in drafting the report. J.C. Ferrer and Robert Barron serve as the vice chairs of the Business Law Section's Legal Opinion Standards Committee, and David Brittain and Roger Larson serve as the co-chairs of the Real Property, Probate and Trust Law Section Legal Opinions Committee.