In general, there will be a list of assumptions on which the preparation of the opinion is based. All assumptions and aspects on which they are based must be indicated in the opinion. Of course, assumptions should only be made in respect of facts that the lawyer knows or has reason to believe are accurate. To some extent, the use of assumptions stems from cost considerations – a client will often have considerable knowledge of the facts of the case in question, but will not want to pay for the service required to verify those facts. In general, lawyers are careful not to frame the opinions they express in a way that triggers strict liability, although parties seeking the lawyer`s advice expect the lawyer to be liable if he acts negligently. Words that imply a standard of care beyond ordinary negligence, such as “I certify that. should be avoided in a legal opinion. However, it is important to remember that a lawyer`s opinion is only an opinion – not a guarantee. Notice under section 13.4(1) of the BIA must be given to the trustee. Pursuant to subsection 13.4(2) of the BIA, the trustee must provide a copy to the Superintendent and to any creditor who requests it. The BIA`s notice under section 13.4(1) should contain details of the documents reviewed and the actions taken by appropriate counsel. Investigations typically include a review of the company`s documents (as listed in the company`s register and filed with the company registry), documents prepared for the specific transaction, as well as any relevant filings in all appropriate records covering the search for securities, charges, and similar matters. Lawyers regularly provide opinions on a variety of topics, and legal opinions are an integral part of many large transactions.
In all cases, the lawyer concerned is expected to provide an opinion that is both legally correct and not misleading to the recipient. The purpose of preparing the legal opinion is twofold: the legal opinion is usually prepared and renewed immediately before the transaction or performance of the contract to ensure that the document has been prepared in accordance with applicable laws and legal practices. Sometimes it is used for litigation, i.e. for the competent preparation of a legal dispute and a constant strategy of conduct before the courts as an additional argument or legal analysis of evidence. When preparing a legal opinion, lawyers are responsible for it, as they conduct legal and factual research, analysis, and reviews. Subsection 13.4(1) of the Bankruptcy and Insolvency Act (“BIA”) concerns a trustee acting as receiver and receiver or representative of a secured creditor. Before acting on behalf of the secured creditor, the trustee must obtain written advice from a lawyer (not acting on behalf of the secured creditor) that the security right is valid and enforceable against the bankrupt`s estate. The purpose of a legal opinion under section 13.4(1) of the BIA is to reassure the trustee as to the validity of the security to be asserted. The opinion given to a trustee under subsection 13.4(1) of the BIA focuses on the date on which the specific security right was made effective against third parties (or not), as the crucial question is usually whether the security was made effective against third parties at the time of bankruptcy. Legal advice is often obtained as part of a banking transaction, but its importance is often overlooked.
This blog explores the purpose of legal advice and when a lender may need one. A fairly recent study by the ABA`s Business Law Section on private mergers and acquisitions in Canada shows a sharp decline in the number of legal opinions on such transactions. The study, which covered 64 transactions ranging from $5 million to $100 million from January 2010 to December 2011, showed that the percentage of transactions requiring legal advice from the target company`s lawyers increased from 72% in 2008 to 55% in 2011. The decline in the comparable study for U.S. transactions was even more pronounced, from 58% in 2009 to 27% in 2011. Legal advice is a formal opinion based on the expertise of professional lawyers. It is a written document, usually written at the request of a client, in which lawyers explain their understanding of the legal provisions relating to the factual circumstances of a particular case. For greater certainty, the party to whom the legal opinion has been submitted in the form of a legal opinion has the right to rely on the advice contained herein. The law does not have a uniform and universal definition of this concept, but the practice of legal advice in common law countries has a long tradition, and clear standards and an advisory law have been developed for the development of qualified legal opinions for various legal situations and disputes. Thus, it can be defined as a written response duly executed by a lawyer to a legal case.
While the use of legal opinion has declined in recent years for many large transactions, particularly those involving government business enterprises, there are still instances where legal advice is required – such as under subsection 13.4(1) of the Insolvency and Insolvency Act, RSC 1985, c B-3 (“BIA”). Legal Opinions in SEC Filings (2013 Update) Task Force on Securities Law Opinions, ABA Business Law Section, 68(4): 1149-1160 (August 2013) Restoring Fairness: Delaware`s Legislative Remedy for Inventory Defaults and Other Corporate Laws C. Stephen Bigler and John Mark Zeberkiewicz; 69(2): 393-428 (February 2014) In 2008, this review published an article outlining the difficulties under Delaware law in determining whether deficiencies in the issuance of shares would invalidate the shares and therefore could not be validated or ratified or only contestable and therefore subject to correction by ratification. The Delaware legislature passed amendments to the Delaware State Corporate Act, the amendments to which will take effect on April 1, 2014, aimed at breaking existing precedents that require defective inventories and laws to be declared invalid. The amendments explicitly provide that shortcomings in the issuance of stockpiles and other legal acts make such stockpiles and acts countervailable and null and void when ratified or validated in accordance with the new ratification laws. The amendments provide Delaware corporations with two alternative means — one that includes company-initiated recourse, the other a lawsuit — to ratify or validate shares and other corporate acts that would have been invalid and unable to ratify under previous law due to authorization error. In this article, we summarize why ratification laws were necessary, give an overview of Delaware`s new ratification laws, and discuss examples of circumstances in which ratification laws could be used, specific types of errors that could be validated, what other route (self-help or legal aid) might be appropriate in different circumstances, and the implications of validation. the Working Group [email protected] documents for legal advice; 69(3): 903-905 (May 2014) Common Qualifications to a Remedies Opinion in U.S. Commercial Loan Transactions Gail Merel (journalist), A. Mark Adcock, Robert W. Barron, Willis R.
Buck, Jr., Jerome A. Grossman, Louis G. Hering, Timothy G. Hoxie, Andrew M. Kaufman, Reade H. Ryan, Jr., Philip B. Schwartz and Stephen C. Demeurer; 70(1): 121-160 (Winter 2014-2015) As a condition of entering into many types of business transactions, one or more parties may be required to provide written comments in favour of other parties to the transaction. These opinions are often referred to as “third-party opinions” because the opinion provider conveys them to one or more parties other than the influencer`s own client.
These opinions may cover a range of matters, including, but not limited to, the status and authority of the Company, the proper authorization, execution and delivery of transaction documents by the Opinionor`s own client, and the enforceability of such documents against the Opinionor`s own client in the transaction. Discussions about the scope of these opinions and the extent to which they are qualified are often time-consuming, and the resulting costs borne by the client whose lawyer is called upon to provide the expertise increase considerably during negotiations. This article, which focuses on third-party opinions expressed in the context of commercial lending in the United States, examines a number of reservations that, in the authors` experience, are often included by opinion leaders for a variety of reasons and generally accept opinion recipients and their lawyers. The authors believe that identifying qualifications commonly used and accepted in the U.S. commercial lending market can help streamline the opinion process on many transactions. Property assessments generally involve both ownership of the land and the registration of a particular charge (for example, a mortgage) on the title. In terms of headlines, opinions can certainly be based on proper research. The judge also commented: ” It is a highly unlikely conclusion that a bank that has doubts about a proposed loan.
and legal advice aimed at dispelling such doubts may legitimately be regarded as the risk that they will err as to the validity of the transaction … ». The Court held that obtaining legal advice on a point of law was not the same as taking a risk on a point of law. The bank did not have to lag behind the legal opinions expressed in the report. In short, the judge was satisfied that if the bank had been advised that the transactions were prohibited, it would not have entered into them. The bank therefore did not run the risk that the transactions would be null and void, but relied on the advice of the Norwegian law firm, which it was entitled to do in the circumstances.
