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

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

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

Conducted on Tuesday, April 24, 2018

Recorded event now available

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Program Materials

This CLE webinar will guide counsel in preparing and providing opinion letters for commercial finance transactions. The panel will review the common elements of an opinion letter, highlight the attendant 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 letter. This opinion letter supports critical legal principles assumptions on which the transaction is based. These letters include opinions that the key parties to the transaction have been duly formed and are validly existing and have the requisite power and authority to perform their obligations 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. Formation and valid existence
    2. Entity power
    3. Authorization, execution and delivery
    4. No required consents, authorizations or approvals
    5. Enforceabilty
    6. No conflict
    7. No 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 that may be subject to negotiation or removal exclusion
  • An overview of Opinions, sometimes requested, that are tailored to specific types of borrowers, transaction terms, or industries, including a sampling of opinion requests and responses tailored to specific state law issues


Brighton, Robert
Robert C. Brighton, Jr.
Brighton Legal Solutions

Mr. Brighton represents U.S. and international issuers and investors, as well as underwriters and placement agents...  |  Read More

Grossman, Jerome
Jerome A. Grossman

Senior Counsel
Gresham Savage Nolan & Tilden

Mr. Grossman’s practice focuses on UCC secured transactions, real estate secured transactions and other financing...  |  Read More

Hepler, Erik
Erik W. Hepler

Kirkland & Ellis

Mr. Hepler concentrates his practice on secured debt financings. He represents borrowers and lenders in connection...  |  Read More

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