Opinion Backup Certificate

Summary

This template is an Opinion Backup Certificate. It is an officer’s certificate provided to a law firm as factual backup for a legal opinion in connection with a loan transaction. This template includes practical guidance and drafting notes. Legal opinions are generally limited to matters of law, however a law firms needs to understand certain factual information about a borrower in order to support each opinion. Since legal opinions are not intended to speak to these underlying factual matters, law firms expressly state in their opinions that such facts are assumed. No law firm wants to issue a legal opinion based on bad facts, so law firms must conduct factual diligence, however the borrower itself is in the best position to confirm the basis for a legal opinion. While a backup certificate from the borrower can reinforce a law firm’s own factual diligence, counsel should be careful to avoid relying on the borrower for any items that are truly legal matters. Having the borrower’s certifications mirror the legal opinions will only serve to provide a false sense of security, since a law firm cannot pass the blame to the borrower if the legal analysis behind an opinion is inaccurate. For more detail with respect to delivering legal opinions, see Preparing Legal Opinions and Other Common Aspects of Opinion Practice.