November 30, 2020 Pro Bono Matters

Let’s All Stop and Reflect for a Moment

By Andrew R. Roberson, McDermott Will & Emery LLP, Chicago, IL

As I voluntarily returned to the office recently on a limited basis, I took some time to reflect on all that has happened in the world since last being in the office several months ago. From COVID-19 to the Black Lives Matter movement; from home office and Zoom to remote learning for students; and so on—these events have impacted us all, both on professional and personal levels.

On my first day back, the parking lot at my train station had only a handful of cars and did not resemble a lot with a multi-year waiting list. My previously crowded train ride now had but a few other riders, all of whom were wearing masks and sitting far apart. Union Station in Chicago, normally bustling with activity, was mostly empty. And my walk along the Chicago River, usually requiring dodging others hustling to work, was more like a quiet walk in the park. Once in the office I was greeted by hand sanitizer dispensers, arrows to make sure foot traffic went in one direction only, and a mostly empty floor of attorneys. So much had changed since I last made my commute from the western suburbs to downtown Chicago!

A lot has changed in the legal world as well, with one of the most notable recent events being the death of Justice Ruth Bader Ginsburg. Much ink has been spilled on Justice Ginsburg, and regardless of your political affiliation or personal beliefs, her story is a remarkable one.

I was never fortunate enough to meet Justice Ginsburg, but I did have both professional and personal experiences that linked me to her. As an aside, I must admit that I have always enjoyed the “Notorious R.B.G.” moniker bestowed on her after a dissent in a 2013 voting rights case. This inserted her into pop culture unlike anything seen before at the Supreme Court level. The Notorious R.B.G. was a nod to Christopher Wallace, more well-known by the names The Notorious B.I.G., Biggie Smalls, and Biggie. He was a rapper from Brooklyn who rose to fame in the 1990s before his death in 1997.1 Justice Ginsburg embraced this moniker, and it has been reported that she said that she and The Notorious B.I.G. had one big thing in common—they were both born and bred in Brooklyn.

Back to my connection to Justice Ginsburg. On the professional side, our paths crossed in 2012 when I was one of the counsel in a tax case before the Supreme Court. The issue was procedural—whether an overstatement of basis could give rise to an omission from gross income that might extend the statute of limitations on assessment from three years to six years. One of my colleagues working on the case had clerked for Justice Ginsburg and felt confident she would agree with our argument. The opposite proved to be true, but luckily for me and my clients five other Justices sided with our position.

Justice Ginsburg’s passing reminded of the case, so I went back and re-read the transcript from the oral argument. Although I had remembered Justice Ginsburg not agreeing with our position, I had not remembered the questions that she had asked. Upon review, it struck me how direct and right to the core of the issue they were. Her questions were aimed at the soft spots in our position and revealed a thoughtful and principled approach to the issue.

On a personal side, Justice Ginsburg’s story was an important one to share with my daughter. Many of you reading this are aware of and watched On the Basis of Sex, the 2018 biopic following her early legal career and focusing on Moritz v. Commissioner, the tax case that she and her late husband Marty Ginsburg handled pro bono before the United States Court of Appeals for the Tenth Circuit. The issue in the case was whether the taxpayer (a man) was entitled to a deduction for expenses for the care of his dependent invalid mother. The government denied the deduction, arguing that it was limited to a woman, a widower or divorcé, or a husband whose wife was incapacitated or institutionalized. The Tenth Circuit disagreed, holding that “if Congress determines to grant deductions of a general type, a denial of them to a particular class may not be based on invidious discrimination. … We conclude that the classification [under the Internal Revenue Code] is an invidious discrimination and invalid under due process principles.” This decision was a landmark moment in Justice Ginsburg’s legal career.

If you haven’t seen the movie, you should. It gives great insights into the challenges that Justice Ginsburg (and other women) have faced. And, because it is a movie centered around a tax case, it obviously appeals to us tax folks.

My daughter was twelve at the time we saw the movie and I viewed it as a great learning opportunity for both of us. To my delight, she really enjoyed the movie and it sparked great discussions between us. In addition to generating dialogue on women’s rights and providing inspiration to my daughter, it also gave her a face to associate with the Supreme Court. I like to think she understood a little better how our judicial system works after we watched the movie and talked about it.

I asked my daughter the other day if she remembered the movie. She did. When I asked her what she remembers feeling, her first word was “aggravated.” When I asked her to expand, she talked about how difficult it was for women during the time period in the movie, but she also had the insight to acknowledge that there is much still to be done to ensure that everyone is treated equally. As I’m sure many of you can attest, these are moments when you feel proud of your children and appreciate how much more they know than we give them credit for. Of course, as a teenager now, she quickly reverted back to making sure she hadn’t missed any important texts or snaps from friends.

So what does all of the above have to do with pro bono and tax? A lot. Now more than ever the less fortunate need access to legal services and our help. We are currently living in a remote world where it is difficult for low-income taxpayers and volunteers to meet in person. The Tax Section and low-income taxpayers are working hard, from participating in virtual calendar calls to setting up new platforms for identifying and engaging in pro bono ventures. We need to continue this work and to do as much as we can to train our next generation to continue giving back to the less fortunate, either through tax pro bono services or otherwise. Although pro bono tax work usually only benefits the specific individual we are representing, sometimes (like in Moritz) it can result in advancement for an entire group of individuals.

Parting Thoughts

I’ll end by restating what I said in my last Tax Times column. These are difficult times for everyone. In addition to social issues in the world, we are dealing with the next normal of social distancing, e-learning, remote working, and Zoom. Thus, while our day-to-day routines may never be the same, we can adapt to continue to help others.

As always, please do your part and give back to the less fortunate. If you are interested in doing pro bono work (tax or otherwise), talk to your law firm’s pro bono coordinator, contact your local low-income taxpayer clinic, or reach out to me or someone on the ABA Section of Taxation’s Pro Bono & Tax Clinics Committee

  1. My first introduction to The Notorious B.I.G. was my sophomore year of college in 1993, when a basketball teammate blasted the music in the locker room. I was immediately drawn to his laidback style and proceeded to Tower Records after practice to buy his CD (a thing of the past for today’s younger generation).