Opinions of Counsel in Lending Transactions: Scope and Assumptions, Substantive Opinions, and Qualifications

Structuring Third-Party Opinion Letters to Lenders Which Minimize Risks to the Preparer

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, April 13, 2017
Recorded event now available

This CLE webinar will guide counsel in preparing and providing opinion letters for commercial finance transactions. The panel will review the risks and potential liabilities, discuss the rights, obligations and expectations of opinion givers and lenders, and outline best practices to reduce risk.


Before closing a commercial finance transaction, the lender often requires the borrower’s counsel to deliver an opinion. This opinion supports critical legal principles on which the transaction is based. These include opinions that the key parties to the transaction have been duly organized and are validly existing and have the requisite power and authority to perform the obligations required under the transaction documents. They also include opinions as to the enforceability of the loan documents.

Opinion letters should include descriptions of their scope, limitations, assumptions and qualifications and provide the legal assurances required by the transaction parties without unduly exposing the opinion giver to legal liability. In significant part this can depend on the legal and factual investigations performed by the opinion giver.

Listen as our authoritative panel of finance attorneys discusses how to prepare and provide opinion letters in commercial finance transactions. The panel will review the risks and potential liabilities for the opinion giver, frequent points of negotiation, and best practices to reduce risk.


  1. Scope of the opinion
  2. Assumptions
  3. Substantive opinions
    1. Organizational and valid existence
    2. Entity power
    3. Authority, execution and delivery
    4. No required consents, authorizations or approvals
    5. Enforcement
    6. No conflict
    7. Litigation
  4. Qualifications and assumptions
    1. State practice
    2. Enforceability exceptions
    3. Legal and factual assumptions
    4. General exceptions
  5. Sources for opinion practice and customary practice
  6. Special issues and opinion topics


The panel will review these and other key issues:

  • The basic opinions typically required in commercial finance transactions
  • The due diligence necessary to give certain opinions
  • The importance of customary practice, assumptions and qualifications in opinion letters
  • Opinions which may be subject to negotiation or removal
  • An overview of opinions sometimes requested tailored to specific types of borrowers, transaction terms or industries, including a sampling of opinion requests and responses tailored to specific state law issues


Robert C. Brighton, Jr., Special Counsel
Sheppard Mullin Richter & Hampton, Los Angeles

Mr. Brighton represents U.S. and international issuers and investors, as well as underwriters and placement agents in a broad variety of capital market transactions. He also represents buyers, sellers and investment bankers in connection with asset purchases and sales relating to small closely-held corporations and tender offers for publicly-traded Fortune 500 corporations. He advises broker-dealers, investment advisers, investment companies, insurers, banks and other financial service companies with respect to formation, and regulatory and transactional issues. He represents borrowers and lenders in credit transactions ranging from acquisition financing to asset-based and cash-flow loans and revolving credit facilities.

Jerome A. Grossman, Senior Counsel
Gresham Savage Nolan & Tilden, San Diego

Mr. Grossman’s practice focuses on UCC secured transactions, real estate secured transactions and other financing transactions (including securitized financings) – from the initiation stage through workouts and restructurings - and third-party legal opinions. He has extensive experience in the structuring and documentation of CMBS loans, primarily on behalf of tenancies in common, Delaware statutory trusts, and REIT subsidiaries. He co-authored CEB Action Guide, Enforcing Security Interests in Personal Property. 

Erik W. Hepler, Partner
Kirkland & Ellis, New York

Mr. Hepler concentrates his practice on secured debt financings. He represents borrowers and lenders in connection with syndication loan facilities, bridge financings, notes offerings, mezzanine loans and intercreditor arrangements. He also advises debtors and lenders in restructurings and insolvency proceedings. He chairs his firm's Opinion Committee.


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Banking & Finance Law Advisory Board

Irving C. Apar


Thompson Hine

Mark N. Berman

Adjunct Professor

Northeastern University

Willa Cohen Bruckner


Alston & Bird

Lawrence Kaplan

Of Counsel

Paul Hastings

Kevin Petrasic


White & Case

Laura D. Richman


Mayer Brown

Robert M. Stern


Orrick Herrington & Sutcliffe

Andrew Stutzman


Stradley Ronon Stevens & Young

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