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October 29, 2015 Pro Bono Matters

Partnering for Pro Bono

By T. Keith Fogg, Harvard Law School, Legal Services Center, Jamaica Plain, MA, and Andrew R. Roberson, McDermott Will & Emery, Chicago, IL

The Pro Bono and Tax Clinics Committee has undertaken a new initiative designed to match law firms with low-income taxpayer clinics (LITCs) in need of assistance.  This article describes the initiative in the hope that it might inspire some law firms to join and to let everyone know of the concept and the rationale for matching firms with remote clinics.

Several barriers face clinicians working in LITCs.  For an overview of the development of LITCs and how many of these barriers came into existence, please see "Taxation with Representation – A History of Low Income Taxpayer Clinics" and "Tax Issues Facing Clients of Legal Services." 1  Although the movement started in academic clinics led by tax academics, the landscape changed with the passage of section 7526, which created a grant to fund the development of LITCs.  That grant freed LITCs from their primarily academic setting and set them on a path to having most clinics housed in legal services organizations.  In addition, independent clinics—not affiliated with either an academic institution or a legal services organization—now operate almost as many clinics as the academic community.

The change in the situs of LITCs has dramatically changed the operating model.  In many LITCs, only one person provides substantive tax assistance.  That person generally does not have the background of most academic clinicians, the resources of a university, or colleagues steeped in tax knowledge readily available.  Many of those who serve as the tax professional for an LITC did not work in the area prior to directing the LITC.  If they work in a legal services organization, their supervisors will almost never have a tax background.  Consequently, many clinicians operating in LITCs must learn tax on the job without a mentor at their workplace.

In addition to the difficulties many clinicians face in learning the substance and procedure of tax, many clinics operate in states without a large tax bar.  Clinics in these settings have difficulty creating pro bono panels, and the clinicians have difficulty finding local practitioners who might serve as mentors.  In contrast, large cities around the country like Washington and New York have many firms with large and sophisticated tax practices and many experienced tax practitioners.  The goal of the Committee's initiative is to match firms in large cities with clinics in more remote areas where there is a greater need for assistance in mentoring clinicians and providing competent pro bono services.

The initiative may also address a third component of need that exists for many LITCs.  Section 7526 requires that an LITC obtain matching funds in order to receive a grant.  The matching funds can come from a combination of cash and in-kind donations.  The in-kind donations can include the value of the time of attorneys who provide pro bono services to an LITC's clients.  By matching more remote LITCs with law firms from larger cities, the LITCs' ability to find matching contributions may increase, allowing the programs to obtain larger grants and serve more taxpayers in need.

The idea for the initiative grew out of an Access to Justice panel that kicked off the Tax Court Judicial Conference in May 2015.  During the panel, Andy Roberson (current Chair of the Pro Bono and Tax Clinics Committee) discussed ways in which his firm, McDermott Will & Emery, assisted low-income individuals and LITCs throughout the country and how there were similar opportunities for other law firms.  The materials included a recent article entitled "A Calendar Call Staffing Success Story," written by myself and Andy, which appeared in the Tax Section's NewsQuarterly (Winter 2014).  The article describes Andy's experience traveling to Hawaii to ensure pro bono services were available at the calendar call and ultimately trying a case on the spot on behalf of a low-income taxpayer.  After the panel and during the remainder of the conference, partners from several law firms approached Andy to discuss how their firms might be able to get more involved in assisting low-income individuals in tax disputes.

After several firms expressed interest at the conference, the Pro Bono and Tax Clinics Committee approached the IRS LITC Program Office with a proposal to create a Partnering for Pro Bono initiative.  The idea behind the initiative was to create a program similar to the current Adopt-A-Base program, in which pro bono volunteers provide tax training to military personnel through the "adoption" of a military institution in their geographic location.  The Tax Section and many law firms have embraced the Adopt-A-Base program.  It has grown over the past few years from a program serving a handful of bases to one that now serves dozens of bases across the country.  The success of that program and the success of the Calendar Call program demonstrate the willingness of Section members to support pro bono efforts to improve access to assistance.  This initiative seeks to build on the success of these earlier programs.

The LITC Program Office embraced the idea because it knew of the difficulties that some clinics had in training new clinicians, finding pro bono panelists and obtaining matching contributions.  As a first step, the LITC Program Office and the ABA Section of Taxation are looking for LITCs that would be interested in participating.  A message went out to all LITCs on September 15, 2015, asking for statements of interest.  Within the first few days, 37 LITCs had requested assistance through the program, and expressions of interest continue to come into the program office.  The Committee hopes to have enough commitments to the program to create a match between each of the LITCs in need and firms willing to assist.

Direct pro bono representation of individual clients with controversies, like Andy Roberson did in Hawaii, is not the only way that participating law firms can assist LITCs.  They can also serve as mentors, consultants, and advisers.  They can strategize with LITC practitioners about case work and tax practice.  They need not even be located in the same geographic region as the LITC with which they are matched—this initiative is intended to provide pro bono assistance and opportunities throughout the country to those in need.

If your law firm would like to participate in this program, please contact ABA Section of Taxation Pro Bono Counsel Derek B. Wagner at 202-442-3425 or [email protected].  If you have questions about the program, please feel free to contact Andy Roberson at 312-984-2732 or [email protected] or Keith Fogg at 617-390-2532 or [email protected].  We welcome your interest and active participation in this newest pro bono initiative. ■

1 T. Keith Fogg, Taxation with Representation: The Creation and Development of Low-Income Taxpayer Clinics, 67 Tax Law. 3 (2013) and T. Keith Fogg, Tax Issues Facing Clients of Legal Services, 28 MIE Journal 17 (2014), available at