“A distinction without a difference”—a colloquial expression employed by one wishing to recognize that while a linguistic or conceptual distinction exists between any number of options, any such distinction lacks substantive practical effect. To allege that a situation presents “a distinction without a difference” is to suggest that any difference between a given set of options is a logical fallacy—purely a creature of erroneous perception. When it comes to concepts of asset protection planning and fraudulent transfer law, one must ask whether the law draws a distinction where there is no difference....This essay identifies these distinctions. Part II provides a summary description of asset protection planning and the reasoning behind the same. It also provides a brief discussion of the substance of Virginia fraudulent transfer law and the potential legal effects such transfers may have on a client. More importantly, this essay embraces the unenviable task of enunciating the substantive legal and ethical difference between the two. Part III enumerates the factors an attorney can look to in determining whether a client’s desired goals are legitimate asset protection planning or fraudulent transfers. Part IV discusses the ethical implications of an attorney assisting a client in effecting asset protection planning and/or fraudulent transfers. Finally, Part V of this essay provides basic guidance for practitioners to follow in order to help identify ethically questionable situations prospectively and deal with them accordingly.
Elizabeth Southall, Landon C. Davis III, & Isaac A. McBeth, A Distinction Without a Difference? An Examination of the Legal and Ethical Difference Between Asset Protection and Fraudulent Transfers Under Virginia Law, 47 U. Rich. L. Rev. 381 (2012).