"A Distinction Without a Difference? An Examination of the Legal and Ethical Difference Between Asset Protection and Fraudulent Transfers Under Virginia Law"

Article by three law students, Landon C. Davis III,Isaac A. McBeth, and Elizabeth Southall. Some key grafs:

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.

Whatever perspective an individual adheres to, one thing is certain: there is a distinction. There is a legal distinction. Attorneys assisting their clients in valid asset protection planning reinforce the client’s long-term security, while attorneys assisting their clients in effecting fraudulent transfers may very well be harming their client’s long-term security. There is an ethical distinction. Attorneys assisting their clients in asset protection planning are fulfilling their ethical duty to represent their client skillfully and competently, while attorneys assisting their clients in effecting fraudulent transfers might violate a number of ethical rules.