BankFirst v. UBS Paine Webber: Why Attorneys Who Structure Asset Protection Plans Are Not Liable
The Fifth District Court of Appeal’s decision in BankFirst v. UBS Paine Webber, Inc., 842 So. 2d 155 (Fla. 5th DCA 2003), addressed whether a creditor can sue the professionals who help a debtor restructure assets. Neither § 222.30 (Florida’s fraudulent conversion statute) nor Chapter 726 (its fraudulent transfer statute) creates a cause of action against an advisor who does not come into possession of the property.
Jon Alper was a named defendant in the case. The court affirmed dismissal of all claims against him and the other professional advisors. The decision established that implementing lawful asset protection planning does not expose counsel to liability under Florida’s fraudulent transfer statutes.
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The Facts: BankFirst, Legendre, and the Bahamas Trust
BankFirst made a loan to a corporation owned by Guy Legendre, who personally guaranteed repayment. At the time, Legendre represented to the bank that he had substantial non-exempt assets. That representation was accurate when made.
When the corporation ran into financial difficulty, Legendre consulted his financial advisor at Paine Webber (Thomas Lavecchia), who advised him to stop putting money into the failing corporation. Lavecchia referred Legendre to Jon Alper for asset protection planning.
According to the complaint, Alper structured an asset protection trust administered by a Bahamian bank. Paine Webber assisted with investment management on the U.S. side. Substantial assets formerly in Legendre’s name were transferred into the trust. Alper also formed a Florida corporation and served as its registered agent. Another attorney, Mark Koteen, served as manager and attorney for the new corporation.
Legendre subsequently filed bankruptcy. His debt to BankFirst, approximately $650,000, went unsatisfied. The bank sued not only Legendre but also his professional advisors: Alper, Koteen, Lavecchia, and UBS Paine Webber. The claim alleged that the advisors conspired with Legendre to hinder and delay the bank’s collection by structuring the fraudulent transfer of assets.
The trial court dismissed the claims against all professional defendants with prejudice.
The Holding: No Liability for Advisors Who Do Not Receive the Property
Chief Judge Thompson wrote the majority opinion, affirming the dismissal. The holding was direct: neither § 222.30 nor Chapter 726 creates a cause of action against a party who assists a debtor’s fraudulent conversion or transfer but does not receive the property.
The court cited Forum Insurance Co. v. Dunham, a federal case applying Florida law, and Mack v. Newton, where the court held that a third party is not liable for the value of fraudulently conveyed property, even if the third party participated in or conspired in the conveyance, so long as the third party did not receive the property.
The distinction is between a transferee who receives the debtor’s assets and an advisor who helps structure the transfer but never holds the assets. Florida’s fraudulent transfer statutes target the first category. The attorney who drafts the trust, the financial consultant who recommends the planning, and the accountant who assists with implementation all fall into the second category. They are advisors, not transferees. Under BankFirst, the statutes do not reach them.
The Dissent and the Civil Conspiracy Question
Senior Judge Harris dissented. His central question: if a debtor’s asset transfer is fraudulent, what policy reason justifies immunizing the attorney who knowingly made it possible?
Judge Harris would have reversed the dismissal and allowed BankFirst to proceed to trial on its conspiracy claim. He cited Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949 (Fla. 3d DCA 1984), which held that a lawyer who willingly and knowingly participates in a conspiracy has no immunity from civil liability. He also pointed to Joel v. Weber, 197 A.D.2d 396 (N.Y. 1993), where a New York court allowed a fraudulent conveyance claim against an attorney under New York’s debtor-creditor law.
The dissent raised a question the majority did not answer: whether a claim for civil conspiracy to commit a fraudulent transfer might exist as a separate tort, independent of the FUFTA cause of action itself. The majority held only that the statute does not create the cause of action. It did not address whether a common-law conspiracy claim could survive on different grounds.
The Florida Supreme Court’s Footnote in Freeman v. First Union
The Florida Supreme Court addressed the same FUFTA question in Freeman v. First Union National Bank, No. SC03-896 (Fla. 2004), a case involving a bank that had custody of fraudulently transferred assets. The Court held that the FUFTA does provide a cause of action against a party who comes into possession of the debtor’s property.
In a footnote, the Court specifically referenced BankFirst and Judge Harris’s dissent. The Court cautioned that its holding applied only to FUFTA claims. It expressly left open whether other theories could reach advisors. The deliberate citation to the dissent signaled that civil conspiracy claims might survive on different grounds.
The practical effect is that BankFirst‘s holding remains the law on the FUFTA question: advisors who do not receive the property cannot be sued under Florida’s fraudulent transfer statutes. But the Florida Supreme Court left the door open for civil conspiracy claims against advisors on other grounds. No subsequent Florida appellate decision has resolved that question.
What BankFirst Means for Asset Protection Practice
The BankFirst decision draws a clear line for attorneys and financial advisors who practice in the asset protection field. Structuring a trust, forming an entity, advising on exempt asset conversions, and implementing a transfer strategy do not create FUFTA liability for the professional, provided the professional does not personally receive or hold the debtor’s assets.
This matters because creditors who lose access to a debtor’s assets after an asset protection plan is implemented sometimes look for alternative targets. The attorney who structured the plan and the financial advisor who facilitated the investment transfers are obvious candidates. The BankFirst holding forecloses the most direct theory of recovery against those professionals.
The decision does not make asset protection planning risk-free for attorneys. The civil conspiracy question remains open. An attorney who knowingly helps a debtor commit common-law fraud (not merely a statutory fraudulent transfer) may still face liability. The distinction matters: a fraudulent transfer under Chapter 726 is a statutory remedy targeting asset movements that harm creditors. Common-law fraud requires a false representation, reliance, and damages. The two overlap in extreme cases but are not the same.
The fraudulent transfer case law traces how Florida courts analyze the line between lawful planning and transfers that courts set aside. The judgment collection case law shows how courts enforce judgments once they exist. The BankFirst decision sits at the intersection: it protects the professionals who implement lawful planning while leaving open the possibility that genuinely fraudulent schemes, as opposed to aggressive but legal asset restructuring, could expose participating advisors.
Jon Alper was a named party in the case and prevailed. The decision is highlighted on the firm’s attorney biography and reflects three decades practicing at the boundary between asset protection planning and creditor enforcement.
