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

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

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

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Conducted on Thursday, October 12, 2023

Recorded event now available

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This CLE course will provide legal practitioners with practical advice about preparing opinion letters and the typical language included in standard opinions requested in 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.


In a typical commercial finance transaction, the lender requires the legal opinion of the borrower's counsel. The lender requires this opinion letter as part of its underwriting to support the legal premise underlying the transaction and related documents.

Although particular transactions sometimes require specialized opinions, all opinion letters in loan transactions include opinions that the borrower and other loan parties are entities that have been duly formed and are validly existing and have the requisite power and authority to perform their obligations under the transaction documents. These legal opinions also typically include opinions about the enforceability of the loan documents.

To serve the needs of the borrower and lender while protecting the attorney against potential liability, a well-written opinion letter describes the scope and limitations on the opinions rendered, the factual (and sometimes legal) assumptions underlying opinions, and qualifications to the opinions rendered. The content of an opinion letter depends largely on the legal and factual investigations performed by the opinion giver, guided by the requirements of the parties and customary practice by attorneys in the practice area.

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: addressees and reliance
  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. Enforceability
    6. No conflict
    7. No litigation
  4. Qualifications
    1. State practice
    2. Enforceability exceptions
    3. Legal and factual assumptions
    4. General exceptions, including bankruptcy and equitable principals
  5. Sources for opinion practice and customary practice
  6. Special issues and opinion topics
  7. Bringdown and supplemental opinion requests


The panel will review these and other vital 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 are inappropriate subjects to be covered by opining counsel or which may be rendered subject to appropriate legal and factual diligence, and scope limitations and qualifications
  • 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 or federal law issues
  • Opinions on commercial transactions involving the treatment of digital assets, electronic notices and signatures, and security interests in intellectual property


Brighton, Robert
Robert C. Brighton, Jr.

Becker & Poliakoff

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

Grossman, Jerome
Jerome A. Grossman

Of Counsel

Mr. Grossman has a wealth of experience in real estate finance law and has represented clients in a broad range of...  |  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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