2015 FALL LEGAL OPINION SEMINAR OCTOBER 27, 2015, NEW YORK

Transcription

1 2015 FALL LEGAL OPINION SEMINAR OCTOBER 27, 2015, NEW YORK Program Co-Chairs: Vice Chairs: Andrew M. Kaufman and Reade H. Ryan, Jr. Arthur Norman Field Gail Merel (Editor) John B. Power AGENDA Monday Evening, October 26, :30 9:30 p.m. Welcome Reception Followed by Concurrent Informal Dinner Meetings 1 WGLO s Relationship with Law Firms Chairs: Timothy G. Hoxie, Jones Day, San Francisco WGLO s Relationship with Bar Organizations and Affinity Groups Chairs: Leonard H. Gilbert, Holland & Knight LLP, Tampa Gail Merel, Andrews Kurth LLP, Houston Philip B. Schwartz, Akerman LLP, Miami WGLO s Relationship with Legal Opinion Recipient Groups Chairs: Stanley Keller, Locke Lord LLP, Boston Tuesday, October 27, :00 8:50 a.m. Registration and Continental Breakfast 8:50 9:00 a.m. Welcome and Introductory Remarks Honorable Thomas L. Ambro, U.S. Court of Appeals, Third Circuit, Wilmington 9:00 9:50 a.m. The Meaning of Law in Legal Opinions Chair: Robert H. Mundheim, Shearman & Sterling LLP, New York With: Arthur Norman Field, Field Consulting LLC, New York Barbara Gillers, New York University School of Law, New York Donald W. Glazer, Newton, Massachusetts Stanley Keller, Locke Lord LLP, Boston Customary usage is settled as to most common opinion terms. One where it may not be is the term law. This panel will discuss whether law does or should mean 1 Descriptions of these evening meetings are set out on Annex A to this Agenda. i

2 9:00 9:50 a.m. The Meaning of Law in Legal Opinions (cont d) different things in different opinion contexts. For example, in a no violation of law opinion some maintain that law means only statutory or regulatory law on the theory that there is no way to violate the common law. As used in the coverage limitation of an opinion letter, however, the term law has a broader meaning. In giving a remedies opinion, the applicable law covered would not be limited to statutory law. The panel also will discuss how opinion preparers deal with conflicting decisions, such as inconsistencies between state and federal courts, and whether they try to reconcile these decisions or take an exception. It will then consider how opinion preparers treat pending or proposed legislation and if there are instances where they need to disclose that legislation to an opinion recipient. 9:50 10:40 a.m. What Law is Implicitly Excluded from Legal Opinions? Chair: Steven O. Weise, Proskauer Rose LLP, Los Angeles With: 10:40 12:10 p.m. Concurrent Sessions I Anna S. Mills, The Van Winkle Law Firm, Charlotte Robert S. Risoleo, Sullivan & Cromwell LLP, Washington D.C. Philip B. Schwartz, Akerman LLP, Miami Opinion letters don't cover all laws that apply. Some opinions list many laws that are not covered. Others rely on unstated exclusions. This panel will explore whether there is a neutral principle that tells the opinion giver and recipient which laws are "in" and which are "out." (1) Choice of Laws and Forum Selection Opinions Co-Chairs: Willis R. Buck, Jr., Sidley Austin LLP, Chicago Susan Cooper Philpot, Cooley LLP, San Francisco Elizabeth Orelup, Quarles & Brady LLP, Milwaukee This session will focus on issues commonly arising when opinion givers are asked to render opinions on the enforceability of a governing law provision and/or a forum selection clause in a contract. Participants will consider the problems they have encountered in rendering these opinions and will also discuss, among other issues, the extent to which opinion givers are relying on express assumptions and qualifications regarding the factual and legal support for the opinions rendered or are relying on customary practice in order to streamline both the opinions themselves and their related assumptions and qualifications. Discussion will focus, as well, on a number of sample formulations for each of these types of opinions. (2) Legal Opinions Covering Future Performance Co-Chairs: Louis G. Hering, Morris, Nichols, Arsht & Tunnell LLP, Wilmington Allen K. Robertson, Robinson, Bradshaw & Hinson, P.A., Charlotte Arthur A. Cohen, Haynes and Boone LLP, Washington D.C. Many closing opinions contain one or more opinions covering performance. For example, the authority opinion often states that the execution, delivery and performance of the transaction documents have been duly authorized by all requisite corporate (or other entity) action. Similarly, the no violation opinion will often state that the execution, delivery and performance of the transaction documents will not violate, among other things, the constituent documents of the entity covered by the opinion or the law of the jurisdiction covered by the opinion. This session will ii

3 10:40 12:10 p.m. Concurrent Sessions I (cont'd) explore the meaning of the performance element of these and other opinions, considering the inherently forward looking nature of performance and the interplay between these opinions and other opinion principles such as that the opinion speaks as of its date and is based on facts existing on that date. The session will also consider several typical situations and the assumptions, qualifications and certifications that can be used in giving these opinions. (3) No Breach or Default of Contracts Co-Chairs: Cynthia A. Baker, Chapman and Cutler LLP, Chicago Stephen C. Tarry, Vinson & Elkins LLP, Houston James Gadsden, Carter Ledyard & Milburn LLP, New York This session will focus on issues commonly arising when opinion givers are asked to render opinions on no breach or default of contracts. Participants will consider the problems they have encountered in rendering these opinions and will also discuss, among other issues, the extent to which opinion givers are relying on customary practice in order to streamline these opinions and the related assumptions and qualifications. Discussion will focus, as well, on sample formulations for these opinions. 12:10 12:25 p.m. Break To Pick Up Lunch 12:25 1:25 p.m. Recent Opinion Developments Moderator: John B. Power, O Melveny & Myers, LLP, Los Angeles With: Donald W. Glazer, Newton, Massachusetts Stanley Keller, Locke Lord LLP, Boston Mark S. Sharpe, K&L Gates, Charleston Peter Szurley, Chapman & Cutler LLP, San Francisco Steven O. Weise, Proskauer Rose LLP, Los Angeles This panel will consider the impact of recent developments on opinion practice. Panelists will discuss a new California sample opinion on personal property security interests and South Carolina's new comprehensive report. They will also summarize other current opinion news, including recent cases on court jurisdiction over opinion givers, opinion giver responsibility for laws of another state, choice of law and choice of forum. 1:25 1:35 p.m. Presentation of 2015 Fuld Award 1:35 1:45 p.m. President s Report Julie M. Allen, Proskauer Rose LLP, New York J. Truman Bidwell, Jr., Sullivan & Worcester LLP, New York iii

4 1:45 3:15 p.m. Concurrent Sessions II (1) Issues for Recipients of Legal Opinions Co-Chairs: Dina Moskowitz, Standard & Poor s Ratings Services, New York Lydia C. Stefanowicz, American College of Mortgage Attorneys, New York/New Jersey Herrick K. Lidstone, Jr., Greenwood Village, Colorado This is the third breakout session continuing the discussion between opinion givers and opinion recipients begun at the Recipient Speaks Panel at WGLO s 2013 Spring Seminar. This session will focus on current issues that recipients are raising in connection with legal opinions, including: the use of the generic exception or kitchen sink qualifications, the use of the bankruptcy and equitable principles qualifications covering security interest and other opinions, the opinion coverage of acquisition agreements in M&A transactions, the opinions that English and other non-u.s. lawyers request of U.S. lawyers in cross-border financings, the opinions requested by recipients in connection with amendments or additional collateral, and the limitations stated in legal opinions on reliance and assertion of rights. (2) Key Take-Aways From the Report on Cross-Border Closing Opinions of U.S. Counsel (and Some Questions to Think About) Chair: Ettore A. Santucci, Goodwin Procter LLP, Boston J. Truman Bidwell Jr., Sullivan & Worcester LLP, New York This session will focus on the key conclusions of the report for "outbound" opinions in cross-border transactions, as well as some possible changes from current practice that U.S. opinion givers and non-u.s. recipients need to consider going forward. The group will also consider the new appendix to the Report which provides illustrative language on some opinion paragraphs with related assumptions and qualifications. The session will also cover some topics that require further thought in collaboration with bar associations from non-u.s. jurisdictions whose law is often chosen to govern cross-border agreements when U.S. law is not chosen. (3) Risk Management of Legal Opinions in Law Firms Co-Chairs: Randy J. Curato, ALAS, Inc., Chicago Richard R. Howe, Sullivan & Cromwell LLP, New York Norman M. Powell, Young Conaway Stargatt & Taylor, LLP, Wilmington Legal opinions can expose law firms to substantial liability, especially when delivered in connection with major transactions. Legal opinions can be wrong on the law or the facts and not be actionable; they can be technically correct both as to the law and the facts but be actionable because the lawyer, in giving the opinion, facilitated wrongdoing by the client; and they can be correct on the law but based on erroneous factual assumptions, leading to a claim of negligent misrepresentation. The critical question is whether the lawyer met the applicable standard of care in preparing the opinion. This session will explore approaches to managing the risks associated with giving legal opinions that law firms follow. iv

5 3:15 4:15 p.m. Current Ethics Issues Relating to Opinions 4:15 5:00 p.m. Closing and Cocktails Co-Chairs: Charles Davant IV, Williams & Connolly LLP, Washington, D.C. Craig D. Singer, Williams & Connolly LLP, Washington, D.C. This panel will review significant ethics issues that commonly arise in opinion practice and will discuss recent authorities. Using hypothetical case studies, the panel will provide insight into how the ethics rules may impact opinion practice, including rules relating to conflicts of interests, multiple clients, confidentiality and fairness to opposing parties. Drawing on their extensive experience in legal malpractice defense, the panelists will point out the risks of paying insufficient attention to these issues. The Working Group on Legal Opinions Foundation directly applies for and ordinarily receives CLE credit for WGLO programs in AK, AL, AR, AZ, CA, CO, DE, GA, GU, HI, IA, IL, IN, KS, KY, LA, MN, MS, MO, MT, NM, NV, NY, NC, ND, OH, OK, OR, PA, SC, TN, TX, UT, VT, VA, VI, WA, WI, and WV. These states sometimes do not approve a program for credit before the program occurs. This transitional program is approved for both newly admitted and experienced attorneys in NY. For more information about CLE accreditation in your state, visit It is not the purpose of these materials or discussions relating to them to suggest or establish practice standards or standards of care applicable to the performance of a lawyer in any particular situation. These materials and the related discussions constitute personal observations suitable for discussion among sophisticated professionals and not legal advice. The appropriateness of any recommendation or conclusion in a particular situation requires detailed individual attention. Further, the views of the authors of the materials included in the WGLO Seminar Handbooks should be understood in the context of oral comments made at the Seminars. Read by themselves, the materials may stress only one of a number of views on an issue or may be otherwise incomplete. The views expressed in the materials have not been endorsed by WGLO or by any of the bar associations or other entities affiliated with it. v

6 ANNEX A 2015 FALL LEGAL OPINION SEMINAR OCTOBER 27, 2015, NEW YORK Monday Evening Concurrent Informal Dinner Meetings and Discussions October 26, 2015 University Club, One West 54th Street, New York 6:30 9:30 p.m. Concurrent Informal Dinner Meetings and Discussions Our three dinner sessions will address WGLO s relationship with its members and with opinion recipient groups. What are the particular needs and goals of each group in regard to opinion practice, and how can WGLO and the participants in that group better work together to achieve them? This is a great opportunity to assist WGLO leadership in the development and direction of its programs and initiatives. In order to achieve these objectives, if you are attending as the representative or designee of a bar organization or a practice affinity group, please join the Bar Organizations and Affinity Groups dinner. If you are attending in another capacity, you may choose either the Law Firm dinner or the Legal Opinion Recipient Groups dinner (in which case we will try to honor your choice, but may need to make reassignments in light of room size). WGLO s Relationship with Law Firms Chairs: Timothy G. Hoxie, Jones Day, San Francisco Robert D. Pannell, Robert D. Pannell LLC, Atlanta WGLO s Relationship with Bar Organizations and Affinity Groups Chairs: Leonard H. Gilbert, Holland & Knight LLP, Tampa Gail Merel, Andrews Kurth LLP, Houston Philip B. Schwartz, Akerman LLP, Miami Richard N. Frasch, San Francisco WGLO s Relationship with Legal Opinion Recipient Groups Chairs: Stanley Keller, Locke Lord LLP, Boston Justin G. Klimko, Butzel Long, Detroit vi