January 3, 2011
"Badges Of Fraud"
The January 2011 online edition of the California Bar Journal reports an order of discipline:
[An attorney] was suspended for two years, stayed, placed on two years of probation with an actual 90-day suspension and he was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. The order took effect May 30, 2010.
[The attorney's] former clients won a judgment against him of almost $425,000 in a case involving fraud, breach of fiduciary duties and legal malpractice. Around the same time, he was going through a divorce and structured a settlement that transferred cash assets of more than $1 million to his wife in exchange for keeping his pension fund, which he considered exempt from judgment. When he told his former clients he did not have the assets to pay the judgment, they filed an involuntary bankruptcy petition against him.
Ultimately, a bankruptcy appellate panel found that transfer of assets was fraudulent, made to avoid collection of the $425,000 judgment. The panel also found circumstantial evidence of “badges of fraud,” including facts that the transfer occurred after a substantial debt was incurred and it rendered [him] insolvent.
[The attorney] stipulated that his actions involved moral turpitude and he failed to report the judgment against him to the State Bar, as required.
In mitigation, [he] has no prior discipline record.
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I wonder what ethical rule the lawyer is supposed to have violated? A fraudulent transfer is not the same thing as committing fraud. And not being able to pay a legal judgment is not in and of itself an ethical violation. Nor, to my knowledge, is structuring your affairs in a way that might defeat a judgment (here, a failed attempt, apparently).
Yet another stipulated settlement which which really provides us with no guidance whatsoever. But that didn't seem to stop the California Bar Journal from presenting it as guidance. I just love how the law on professional ethics is slowly being expanded in this way.
Posted by: FixedWing | Jan 3, 2011 8:33:26 AM
I think the ethical violation was that he had already lost the case where he was sued for defrauding his clients and breaching his fiduciary duties. Also, in some states, a transfer of assets for the sole purpose of avoiding paying a judgment is a crime.
Posted by: Marilyn | Jan 4, 2011 6:01:43 AM
The law in America is so confusing - the UK has just seen a new 'bribery act' which is how i came across this - trying to learn as much as I can.
Posted by: Gilbert@namebadges | Aug 17, 2011 5:30:14 AM