A public finance law practice involves all aspects of financing activities for entities or projects that can borrow on a tax-exempt basis. These entities or projects consist of a variety of governmental issuers, including states, municipalities, counties, governmental agencies, and economic development agencies; nonprofit borrowers, such as colleges, hospitals, and cultural institutions; and projects, such as student loans, affordable housing, and solid waste disposal, among others. Public finance lawyers represent issuers, underwriters, borrowers, bondholders, trustees, and other parties in connection with the issuance and holding of tax-exempt bonds. The practice includes representation in financing, tax, and general legal matters. A few law firms with public finance practices also specialize in defaults and workouts of tax exempt bonds.
There are several roles that an attorney or law firm can play in public finance, including serving as bond counsel, disclosure counsel, underwriter’s counsel, trustee counsel, and bondholder counsel.
- Bond counsel is typically retained by the issuer and provides a legal opinion that bonds have been validly issued and that the interest thereon is exempt from federal (and perhaps state) taxes, in addition to preparing and advising on the various documents relating to issuance.
- Disclosure counsel is retained by the issuer and provides advice on issuer disclosure obligations and typically prepares the official statement and continuing disclosure agreement.
- Underwriter’s counsel represents the underwriter on the purchase of a new issue of municipal securities. This includes a review of the issuer’s bond resolution and documentation, a review of the accuracy and adequacy of disclosure in the official statement, the preparation of the purchase contract for the sale of the bonds to the underwriter and the official statement, assisting the underwriter in establishing the underwriter’s due diligence, and the delivery of a “10b-5” opinion.
- Trustee counsel may play a small role at issuance, but if a deal becomes distressed, assists the trustee in navigating the complexities of the exercise of rights and remedies and capital recovery on behalf of bondholders.
In addition, bond financings bear on other areas of the law since they involve understanding the financial and operating position of issuers of securities. The issues involved in a bond financing are complex, and it is essential that the public finance attorney or law firm understand and stay up-to-date on the ever-evolving laws and regulations proposed and implemented by the Internal Revenue Service (IRS) and the Securities and Exchange Commission (SEC).
Richard H. Moche
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