Informal 91-22.
Case Date | December 05, 1991 |
Court | Connecticut |
Connecticut Ethics Opinion
1991.
Informal 91-22.
December 5, 1991INFORMAL OPINION 91-22Fraudulent TransfersWe received the following inquiry:
My client and his wife are joint owners of the house and land
where they live. My client owes substantial debts that he can not repay. May I
ethically recommend to my client that he transfer his interest in the house to
his wife? Does it make any difference if the client suggests it to me and I
draft the deed, have it executed and filed without giving notice?
I realize that the transfer of my client's interest in the house
to his wife is what is called a fraudulent transfer. However, the Rules of
Professional Conduct seem to me to define fraud or fraudulent in the beginning
"Terminology" section (of the Rules) in a more restrictive way. The definition
requires having a purpose to deceive and not merely negligent misrepresentation
or failure to apprise another of relevant information. In the case I am
presenting, the deed is on public record, so the creditors cannot be said to
have been deceived. Once the deed has been executed and filed, the definition
says that I am not required to apprise the creditors of the fact of the
deed.
Please let me know the opinion of your committee on this
issue.
It is our opinion that a lawyer may not counsel or assist a
client to engage in a fraudulent transfer that the lawyer knows is either
intended to deceive creditors or that has no substantial purpose other than to
delay or burden creditors. The basis for our Opinion are Rules 1.2(d) and 4.4,
and in certain limited circumstances, Rule 8.4(c).
In this Opinion, we use the term fraudulent transfer rather than
fraudulent conveyance because Connecticut adopted the Uniform Fraudulent
Transfer Act effective October 1, 1991. PA 91-297.
Although the inquirer invites us to focus on fraudulent
transfers, we wish to point out that whether or not a particular transaction is
a fraudulent transfer as a matter of substantive law is not the decisive factor
in applying the rules. The decisive factors are whether the lawyer knows that
transfer constitutes conduct having a purpose to deceive (See
Rule 1.2(d)) or whether in counseling or assisting the client the lawyer is
using means that have no substantial purpose other than to embarrass, delay or
burden third parties (See Rule 4.4).
Where fraudulent transfers are concerned, we wish to point out a
distinction that we have drawn based on the rules and their history. The
distinction is between fraudulent transfers that the lawyer knows are
either intended to deceive creditors or that have no
substantial purpose other than to delay or burden creditors on the one hand,
and fraudulent transfers where the lawyer does not know of any intention to
deceive and the lawyer is aware of a substantial purpose other than the
delaying or burdening of creditors. The reason for the distinction is that
while all fraudulent transfers are generally thought of as illegal and can be
set aside, the rules do not apply to all illegal conduct but rather to conduct
that is known to be criminal or fraudulent. Our conclusion, that the rules do
not apply to all illegal conduct, is based on the language of Rule 1.2(d) as
well as on the following history of Rule 1.2(d), including DR 7-102(d) of the
Code of Professional Conduct:
A. The predecessor to Rule 1.2(d) was DR 7-102 Representing a
Client within the Bounds of the Law, which provided as follows:
(A) In his or her representation of a client, a lawyer shall
not:
(7) Counsel or assist his or her client in conduct that the
lawyer knows to be illegal or fraudulent.
B. In drafting the rules, originally the Kutak Commission
proposed a bar against a lawyer's assisting a client to conclude an agreement
"that the lawyer knows or reasonably should know is illegal, contains legally
prohibited terms, would work a fraud, or would be held to be
unconscionable as a matter of law." Model Rule 4.3 (Discussion Draft, Jan. 30,
1980). The Commission abandoned this position for the following one.1
C. Proposed Rule 1.2(d):
A lawyer shall not counsel or assist a client, in conduct that
the lawyer knows is criminal or fraudulent, or in the preparation of a written
instrument containing terms the lawyer knows are expressly prohibited by law,
but a lawyer may counsel or assist a client in a good faith effort to determine
the validity, scope, meaning or application of the law.
The New York Bar proposed, among other things, that the phrase
"or in the preparation of a written instrument containing terms the lawyer
knows are expressly prohibited by law" be deleted. The Commission opposed that
amendment but it was adopted by the ABA.2
Rule 1.2(d) as now in effect in Connecticut reads as
follows:
A lawyer shall not counsel a client to engage, or assist a
client, in conduct that the lawyer knows is criminal or fraudulent but a lawyer
may discuss the legal consequences of any proposed course of conduct with a
client and may counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning or application of the law.
This chronology shows an unmistakable narrowing of the type of
conduct to which Rule 1.2(d) was intended to apply from illegal or fraudulent
conduct to criminal or...
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