Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.
Deconstructing the Duty to the Tax System: Unfettering Zealous
Advocacy on Behalf of Lesbian and Gay Taxpayers
Anthony C. Infanti*
*Associate Professor of Law, University of Pittsburgh School of Law
When we think about where a lawyer’s loyalty lies, our thoughts most naturally turn to her client. After all, a lawyer owes her client a duty to provide competent representation, a duty to “act with reasonable diligence and promptness,” a duty to maintain the client’s confidences, and a duty to avoid undertaking a new matter that conflicts with the interests of her client (and, in some cases, even those of a prospective or a former client). All of these various duties to the client are summed up in the lawyer’s charge to act “with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”
However, a lawyer also sometimes owes a duty to others that trumps her duty to her client. For example, no matter how much it may personally benefit the client, a lawyer is ethically prohibited from counseling her client to engage in criminal or fraudulent conduct; unlawfully obstructing another party’s access to evidence; unlawfully altering, destroying, or concealing evidence; falsifying evidence or counseling or assisting a witness to testify falsely; or making frivolous discovery requests. Moreover, a lawyer has “special duties . . . as [an] officer of the court to avoid conduct that undermines the integrity of the adjudicative process.” Most notably, a lawyer owes a duty of candor to a court, arbitrator, administrative agency, or any “other body acting in an adjudicative capacity,” even if the information that must be revealed is otherwise subject to the duty to maintain client confidences.
Likewise, it is generally—though by no means universally—acknowledged that a tax lawyer owes a similar special duty to the tax system that may conflict with and constrain the duty that she owes to her clients. The American Bar Association (ABA) appears to straddle the fence in this debate, providing aid and comfort to both sides. On the one hand, the ABA has formally adopted the view that tax compliance is often the first step in an adversarial process, providing justification for those who reject anything but undivided loyalty to the client in interactions with the Service. On the other hand, the ABA permits lawyers to draw on nonlegal considerations (for example, “moral, economic, social and political factors”) when rendering advice to clients and further urges lawyers to participate “in activities for improving the law, the legal system or the legal profession,” thus opening the door for the view that tax lawyers actually have competing loyalties to their clients and to the tax system.
In any event, there is some intuitive appeal to the notion that a tax lawyer must balance the duty to her client against a countervailing duty to the tax system. From the start, the taxpayer has a decided advantage over the government in tax matters merely by dint of the ability to self-assess her rightful share of the overall tax burden. Under our self-assessment system, the taxpayer has the advantage of: (1) being the only party with full knowledge of the relevant facts; (2) maintaining a great deal of control over whether—and, if so, how—those facts are shared with the government; and (3) knowing that the government lacks the resources to audit compliance with the tax laws in all but a small handful of cases. This combination of advantages creates an incentive for taxpayers either to avoid reporting questionable transactions at all or, if they must, to report them in a way that will not draw the attention of the Service. In this way, taxpayers can play the audit “lottery” with the confidence that, in all likelihood, their returns will escape scrutiny and, as a result, questionable positions taken on those returns will be confirmed by default. To superimpose unbridled loyalty to the client over these already hefty advantages would only seem to foster abuse of the tax system that will undermine its integrity and, eventually, erode its viability as a means of collecting the revenue upon which the functioning of our government depends.
Unfortunately, however, intuitive appeal often leads to unthinking application. Thus, a tax lawyer might be tempted to apply this conventional conceptualization of the duty to the tax system—that is, as a necessary temper for unbridled zealous advocacy—to the unconventional advice that she provides to her lesbian and gay clients. As explored more fully below, lesbians and gay men do not experience the tax system in the same way that heterosexuals do. In contrast to heterosexuals, lesbians and gay men are in the unique position of being the only group that is the object of both overt and covert invidious discrimination in the application of the tax laws. An important effect of this discrimination is to turn what is a tactical advantage in the hands of heterosexual taxpayers into the only defense—and, it is worth noting, a defense that often comes at the price of self-stigmatization—that lesbians and gay men have against an overreaching federal government. As a result, if a tax lawyer were to temper her advice to lesbian and gay clients in accordance with the conventional conceptualization of the duty to the tax system, she might not only undercut the effectiveness of these defenses, but also risk doing serious harm to her clients. In either case, the tax lawyer would have become an accomplice of the federal government in its invidious discrimination against her lesbian and gay clients.
This Article deconstructs the conventional conceptualization of the duty to the tax system in an effort to open the necessary ethical space for crafting an alternative view of that duty—one that better suits the representation of lesbian and gay clients. Precisely because of its conventionality, the common conceptualization of the duty to the tax system is an overweeningly heteronormative one. By this, I mean that this conceptualization reflects “the largely unstated assumption that heterosexuality is the essential and elemental ordering principal of society.” Having been crafted with only heterosexuals in mind, the conventional conceptualization of the duty to the tax system reflects heterosexual taxpayers’ considerable tactical advantages over the Service and posits a nearly constant tension between that duty and the tax lawyer’s duty of zealous advocacy. In contrast, the alternative view that I lay out in this Article delineates a duty to the tax system that exists in harmony with, rather than opposition to, the duty of zealous advocacy. This alternative view allows a tax lawyer simultaneously to protect her lesbian and gay clients from harm and to discharge her obligation to safeguard the integrity of the tax system by actively preventing its abuse by an overreaching federal government.I have divided the remainder of this Article into four parts. Part II sketches the conventional conceptualization of the duty to the tax system and its relationship to a tax lawyer’s duty of zealous advocacy. Part III offers a lesbian and gay perspective on the conventional conceptualization of the duty to the tax system. Part IV relaxes the assumption that all taxpayers are heterosexual and explain how the duty to the tax system and the duty of zealous advocacy can nicely coalesce in the representation of lesbian and gay taxpayers. Part V sets forth my brief concluding remarks.