Legal Opinions in Corporate Transactions Affected by FCC Regulation: An Economic Approach

In 1996, a subcommittee of the Federal Communications Bar Association published a report on legal opinion practice in corporate transactions involving FCC licensees (the FCBA Report). The FCBA Report, although inspired by the American Bar Association’s Legal Opinion Accord and Guidelines (the Accord), deviated from the Accord in many important respects. The FCBA Report likewise is at variance with the recent report of the TriBar Opinion Committee (the TriBar Report), which presents a comprehensive treatment of customary legal opinion practice. Given recent developments in case law expanding the liability of lawyers to third parties for their legal opinions, the departure of the FCBA Report from the approach of the Accord and the TriBar Report could expose communications practitioners to unnecessary risk.

Communications practitioners should only be asked to opine with respect to matters for which they have a reliable source of factual information and for which they are the least-cost source of the opinion sought. To the extent that the FCBA Report departs from these principles, practitioners should follow the approach of the Accord and the TriBar Report.