The scene repeats itself in law offices all over Brazil. The successful businessman sits before the lawyer and makes the request: “Doctor, I want to protect my assets. I've heard about family holding companies , offshore companies , and donations with reserved usufruct. What do you recommend?”
The question seems simple. The answer, however, hides pitfalls that can turn a consultant lawyer into a suspect and a business client into a defendant.
Estate planning is a legitimate, recommended, and increasingly sophisticated activity. But the line between legitimate asset protection and the crime of money laundering has never been thinner. And lawyers who don't understand this boundary are, literally, playing with fire.
What has changed in recent years?
For decades, asset protection structures operated in a gray area. Family holding companies were formed without much scrutiny. Donations between spouses went unnoticed. Transfers to offshore tax havens were treated as financial sophistication, not as a red flag for compliance.
This scenario has changed radically.
Law 12.683/2012 eliminated the exhaustive list of predicate offenses for money laundering. Today, any criminal offense (including tax crimes, crimes against public administration, and even misdemeanors) can form the basis for a money laundering charge.
The businessman who evades taxes and then sets up a holding company to "organize" his assets is not doing tax planning, he is laundering money.
The COAF (now the Financial Information Unit – UIF) has exponentially expanded its monitoring capacity. Unusual transactions, incompatible with the client's declared financial capacity, trigger automatic alerts. Real estate registries, notary offices, and commercial boards feed databases that are cross-referenced in real time.
And the lawyer? He's in the crosshairs.
Law 9.613/98, in its article 9, already included in the list of persons obliged to report suspicious transactions "natural or legal persons who provide, even occasionally, advisory, consulting, accounting, auditing, counseling or assistance services of any kind ".
A lawyer who structures asset transfers without verifying the origin of the funds is not only negligent, but may be an accomplice.
Two situations you might encounter
Situation 1: The client wants to donate real estate to their children with a reservation of usufruct.
This is the most common operation in Brazilian estate planning. The father transfers the property to the heirs, retains the usufruct for life, anticipates the succession, and reduces costs related to inheritance tax.
Where is the risk?
If the properties were acquired with funds of undeclared origin (bribes, slush funds, tax evasion), the donation is an act of concealment.
The father isn't planning it; he's integrating illicit assets into the formal system. The children, if they are aware of or suspect the origin of the assets, can be held liable as co-perpetrators.
The lawyer who formalizes the deed without questioning the compatibility between the transferred assets and the client's declared asset growth is, at the very least, taking a risk that he should not be taking.
Situation 2: The entrepreneur wants to establish holding to “protect” assets from foreclosures
A holding company is a legitimate instrument for business and succession planning. But when the business owner mentions "protection against creditors," alarm bells should ring.
If the formation of a holding company occurs when there are already debts, lawsuits, or tax obligations, the operation may constitute fraud against creditors and, depending on the circumstances, fraud against creditors with criminal implications.
If the funds transferred to the holding company originate from tax evasion, the entire structure becomes an instrument for money laundering.
The lawyer needs to ask uncomfortable questions: Where did this wealth come from? Are there any known liabilities? What is the tax situation of the operating company? If the client resists answering, that resistance is, in itself, an indication of a problem.
The civil and criminal liability of lawyers: an overview.
In addition to criminal liability for involvement in money laundering, lawyers who work in estate planning are exposed to other forms of liability that deserve attention.
1) Civil liability.
The lawyer assumes an obligation of means, not of result, so he cannot be held responsible for the failure of the case. However, he is liable for acts committed with intent or negligence (article 32 of the Brazilian Bar Association Statute). If the client suffers harm due to gross error, omission of information, or loss of a procedural opportunity, the lawyer is civilly liable in proportion to the damage.
2) Unfaithful sponsorship.
Article 355 of the Penal Code provides for imprisonment of six months to three years, and a fine, for a lawyer who "betrays, in the capacity of lawyer or attorney, the professional duty, harming an interest whose representation in court is entrusted to him".
In the context of estate planning, structuring a transaction that exposes the client to criminal risk may constitute a breach of professional duty.
3) Exploitation of prestige.
Article 357 of the Penal Code criminalizes the act of soliciting or receiving money "under the pretext of influencing" a judge, prosecutor, or court official. Penalty: imprisonment from one to five years and a fine.
Lawyers who promise to "resolve" complex property situations through undue influence are committing a crime, not providing legal advice.
4) Fees of illicit origin.
There is doctrinal debate regarding the receipt of fees derived from crime. The mere receipt of such fees as consideration for a legitimate service does not constitute money laundering. However, if there is "masking," that is, if the lawyer receives funds and returns part of it to the client to simulate a legitimate transaction, there is co-authorship in the crime of money laundering, requiring direct intent.
Why does a corporate lawyer need training in criminal law?
A lawyer who advises business owners on estate planning without understanding the criminal implications is providing an incomplete service. They are exposing their clients to risks they cannot identify. They are also exposing themselves to liabilities they cannot imagine.
Training in economic criminal law enables one to:
Identify red flags before formalizing transactions. The client who arrives in a hurry, who resists documenting the origin of funds, who proposes unnecessarily complex structures—all these are signs that a trained lawyer recognizes. Avoiding willful blindness is not just prudence: it's a professional imperative.
Structuring operations that withstand scrutiny. Legitimate wealth planning doesn't need to fear investigation. But it does need to be documented, justified, and consistent with the client's declared financial capacity.
Defending clients who are already under investigation. When the investigation begins, a lawyer who is proficient in both property law and economic criminal law can see the operation from both sides and build a defense that makes sense to the criminal judge.
Engage in technical dialogue with authorities. Police officers, prosecutors, and judges specializing in financial crimes have specific training. A lawyer who doesn't speak the same language is at a disadvantage.
Refuse the mandate when necessary. If the lawyer perceives irregularities in the operation proposed by the client, they have a duty to refuse or resign from the mandate. It's not just a right: it's protection. Continuing to advise on a suspicious operation is to assume the risk of personal liability.
Where can I find this training?
The IDP's LLM in Economic Criminal Law was designed precisely for this professional: the lawyer already working in the market, advising business owners and high-net-worth families, who needs to master the boundary between legal and illegal practices in asset transactions.
The faculty includes those at the heart of these issues: judges from courts specializing in financial crimes, prosecutors working on major operations, and lawyers defending high-profile national cases. The methodology is practical, based on real cases, on the analysis of investigations and proceedings that have taken place, not on textbook hypotheses.
The hybrid format, with in-person meetings in Brasília that include technical visits to the higher courts, allows access to the inner workings of the criminal justice system that few courses offer.
