Can a lawyer advise a client to make interspousal transfers of property to protect assets without engaging in fraudulent conduct?

Plain-English summary

The inquiry concerned the propriety of a lawyer advising a client to participate in interspousal transfers of property to protect assets. Without expressing a legal opinion of its own, the committee was advised that Washington law expressly allows interspousal transfers without affecting an individual's right to receive Medicare benefits.

On that premise, the committee was of the opinion that advising such transfers would not constitute participation in fraudulent conduct by a lawyer. The committee suggested that the inquirer review the law.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The committee cited no rule of professional conduct, and the premise it relied on (that Washington law allowed the transfers without affecting benefit eligibility) is a point of substantive law that may have changed. Treat this page as historical context, not current guidance. Verify against current rules and current law before relying on any specific statement here.

Common questions

Q: Is advising a client to transfer property to a spouse to protect assets a form of helping with fraud?

A: Per the opinion, not on the facts presented. The committee reasoned that because Washington law expressly allowed interspousal transfers without affecting the right to receive Medicare benefits, advising such transfers would not constitute participation in fraudulent conduct.

Q: Did the committee decide that the transfers were lawful?

A: No. The committee expressly declined to express a legal opinion; it stated it had been advised that Washington law allowed the transfers, and it suggested the inquirer review the law.

Background and rules framework

The committee framed the question as whether advising the transfers would be "participation in fraudulent conduct by a lawyer," the conduct ethics rules forbid. It resolved the question not by parsing a rule of professional conduct (it cited none) but by accepting that the underlying transfers were permitted by Washington law, so that advising them was not assisting fraud. The committee's express suggestion to review the law signals that the conclusion rests on that legal premise.

Citations and references

The opinion cites no rule of professional conduct, statute, or case. The committee's conclusion turns on its stated premise that Washington law expressly allows interspousal transfers without affecting the right to receive Medicare benefits.

See also

• VSB Ethics Op. 1771: assisting a client's transfer of her only asset to defeat creditors
• ABA Formal Op. 491: avoiding counseling or assisting a crime or fraud
• ISBA Ethics Op. 728: advising and assisting a client with a non-fraudulent breach of contract

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=181

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1070
Year Issued: 1987
RPC(s):
Subject: Interspousal transfers; participation in fraudulent conduct

Your inquiry concerns the propriety of a lawyer advising a client to participate in interspousal transfers of property to protect assets. Without expressing a legal opinion, the Committee was advised that Washington law expressly allows interspousal transfers without affecting an individual's right to receive Medicare benefits. Therefore, the Committee was of the opinion that advising such transfers would not constitute participation in fraudulent conduct by a lawyer. The Committee suggested that you review the law.