2/5/2016
Business Law Today
Advertisement
Follow ABA
myABA | Log In
JOIN THE ABA
SHOP ABA
CALENDAR
Membership
ABA Groups
Diversity
Advocacy
Resources for Lawyers
MEMBER DIRECTORY
Publishing
CLE
Career Center
News
About Us
Home
Membership
Committees
Events & CLE
Publications
Section News
Initiatives & Awards
About Us
Contact Us
Volume 11, Number 6 ­ July/August 2002
Business Letters E­mail tips, continued
I liked William Swiggart's article in the May­June issue, "Enemy by e­mail: Don't get
trapped by the technology." I was so engrossed that I missed my stop on the train
for the first time ever. I have sort of solved the multiple commentary problem by not ccing or bccing my
clients on the initial e­mail to the other side, but instead forwarding it to the clients
immediately thereafter, which only lets them "reply" to me. It only takes a half
second longer and also allows me to add a comment on the original message for the
clients' eyes only.
Matthew C. Dallett
Boston
About those opinion letters
In his "One size doesn't fit all" article in the May/June 2002 issue of Business Law
Today, Arthur Field invites responses to his comments. Here are some thoughts
from one who has spent his entire career as a business lawyer both giving and
receiving legal opinions.
http://apps.americanbar.org/buslaw/blt/2002­07­08/letters.html
1/3
2/5/2016
Business Law Today
Mr. Field refers to a category of opinion he labels the "kitchen sink" response to
requests for legal opinions. As he says, he is referring to the detailed list of
qualifications that typically precedes the actual opinions in the opinion letter. He
finds such lists regrettable. It is not clear from his comments whether Mr. Field
would eliminate all such qualifications or just some of them. That is an important
point.
Mr. Field refers to continuing efforts to simplify opinions, particularly including the
ABA Opinion Accord and the most recent TriBar Opinion Committee report, among
others. I agree that the Accord never achieved its laudatory goal of attempting to
secure consensus on the meanings of terms used in opinions, which I have always
viewed as regrettable. I also agree that the most recent TriBar report and other
similar efforts have focused on "customary practice," an effort that I am not so sure
is laudatory. I will characterize the "customary practice" school of thought as "we all know what
we mean, so we don't need to say it." Indeed, there has been an effort among some
corporate lawyers in Boston to develop a form of opinion that proceeds exactly along
these lines, omitting essentially all qualifications on precisely this premise. But is the
premise realistic? Consider finding yourself before a judge where the scope of your opinion, expressed
without qualifications, is at issue. Prior to going on the bench, he was a very highly
regarded plaintiff's lawyer. In his prior experience, a "legal opinion" was a view about
the law such as "if your car is hit from behind by another car, the other guy is
liable." The judge is intelligent and thoughtful. What do you say when he asks you
why you never said in your opinion that the agreement might not be enforceable in
bankruptcy, when you said flatly that the agreement "is enforceable in accordance
with its terms"? Are you comfortable responding, "I didn't have to say that because
everybody [except the opinion recipient and perhaps you, your honor,] knew it was
so and therefore it didn't have to be stated"?
There existed not so many years ago a basic split in views between experienced
corporate lawyers with respect to the meaning of "enforceable in accordance with its
terms," as applied to an agreement. The so­called "New York view" was that the
expression meant exactly what it said, and that unless specifically called out, each
term of the agreement was enforceable. The contrasting "California view" was that
the expression meant that the basic terms of the agreement were enforceable but
not that every term, however minor, was. The California view sounds much like the
"customary practice" point now expressed in the New York­ based TriBar report.
How, then, do we know what "customary practice" is?
That does not mean that I endorse lengthy and prolix statements of qualifications. I
have seen my share of excess in such statements. I completely agree that
qualifications should be appropriate to the situation. It is my guess that the kitchen­
sink style stems from three primary causes. The most important is probably an urge
to protect the firm delivering the opinion. When in doubt, add another qualification
on the ground that it can't hurt and who knows when it might help? A second
reason is just plain bad drafting. There is too much of that at all levels, including in
firms with substantial reputations.
A third reason may well be cost. Contrary to what Mr. Field says about saving cost,
short lists of qualifications, tailored to the situation, require thought, which
translates into time and effort on the part of the lawyer delivering the opinion,
which in the end costs more. Word processors are very convenient devices. The
quickest and cheapest way to draft an opinion is to go to the form file and copy the
firm's "standard" qualification language, particularly if the drafter is a relatively
junior associate who is under pressure to produce a product and has not yet
developed the experience to decide what to leave out. The result is far from ideal,
but it happens all the time.
What is the solution? I wish I had one. Despite the promise initially afforded by the
Accord, realistically it has failed in its primary goal. Leaving out all the qualifications
is not a solution I am comfortable with as things are today. Prolix lists of
qualifications look silly and don't do the profession any good. For now, all I am left
with is an effort to generate reasonable lists of qualifications and attempt to educate
business lawyers in their appropriate application. It's not a perfect world, but I don't
have access to a better one.
Andrew L. Nichols
Boston
http://apps.americanbar.org/buslaw/blt/2002­07­08/letters.html
2/3
2/5/2016
Business Law Today
Arthur Field replies
Andrew Nichols' letter indicates that all of us prepare opinions after referring to lists
of exceptions. That is certainly correct. Starting from those lists, the question is
whether the opinion giver tries to select relevant exceptions. Opinion givers who are
trying to follow customary practice attempt to select relevant exceptions. The article
is about opinion givers who do not try to select the relevant, but merely provide
standardized lists of exceptions — many of which are unrelated to the transaction,
the documentation and the circumstances. I do not argue for taking out all exceptions. Many opinions would be wrong without
relevant exceptions. I do argue that we should not tolerate proposed opinion letters
that knowingly contain irrelevant material.
Mr. Nichols suggests a certain affinity between the California view and the TriBar
Reports. All of the opinion reports taken together represent a consensus on nearly
all opinion issues. Even the long­time divergence of the California and TriBar Reports
may be fading. See a description of it at 53 Bus. Law. 562 fn 62. An announcement
by the California Bar Opinion Task Force dated January 2001 at footnote 14
indicates that consideration is being given to whether the California position should
be maintained. Customary practice is simply what experienced lawyers do. Quite
sensibly, experienced lawyers try to avoid taking exceptions that are understood to
be applicable whether or not stated. It does not help anyone to restate the
bankruptcy exception every time that a remedies opinion is given. On the other
hand, if there is doubt about what will be understood by an experienced lawyer for
the recipient, Mr. Nichols is quite right in stating that an exception should be taken.
The goal is not exceptionless opinions but rather relevant and intelligent ones.
Giving opinions isn't easy. It requires the application of professional judgment. That
involves time, effort, experience and continuing study. Were the process merely
mechanical (a) third parties would not find opinions of much use and (b) clients
would not find it necessary to engage experienced lawyers. Editor's note: Mr. Field's e­mail address in the bio accompanying his article was one
character off. The correct address is: [email protected].
Back to Top
FOR THE PUBLIC
RESOURCES FOR
ABA­Approved Law Schools
Bar Associations
Law School Accreditation
Government and Public
Sector Lawyers
Public Education
Public Resources
STAY CONNECTED
Non­US Lawyers
Twitter
Public Interest Lawyers
Facebook
Senior Lawyers
Judges
Solo and Small Firms
Law Students
Young Lawyers
LinkedIn
ABA Career Center
Contact Us Online
Military Lawyers
Terms of Use
Reserved
| Code of Conduct
| Privacy Policy
| Your California Privacy Rights | http://apps.americanbar.org/buslaw/blt/2002­07­08/letters.html
Copyright & IP Policy
| Advertising & Sponsorship | ABA
| © 2015 ABA, All Rights
3/3