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September 21, 2021 Pro Bono Matters

Rinse, Wash, and Repeat: The Cyclic Nature of Attorney (Pro Bono) Work

By Gina Ahn, Community Economic Development Services, Low Income Taxpayer Clinic, Los Angeles, CA

Have you ever wondered about the cyclic nature of our work as attorneys? I once asked a friend who defends corporations in employment law, “Why do you have repeat clients? Don’t they learn from the first time an employee sues them?” His response was simple, “Sure they learn. But employees are creative and they think of new ways to sue deep pockets.”

I’ve wondered about the cyclic nature of public interest tax work, as well. We often have repeat clients at our low-income taxpayer clinic (LITC). Even if we help one Uber driver who didn’t realize his “side hustle” was a business that owed estimated quarterly taxes before April 15, there is always another “fill-in-the-blank” befuddled independent contractor walking into the clinic doors. The education begins again, with the newly minted business owner, who did not know they owned a business.

A beach full of starfish: is it worth it?

It can be disheartening but I find a modern Aesop’s fable helpful. It’s called The Starfish Story. It’s a story often quoted by the founder of the operating foundation at which I once worked to remind the staff that what we were doing was meaningful and not to get “compassion fatigue.” Apparently, it’s a favorite story among foundations because there’s even a foundation using the concept as its name. Below is the story as adapted by that foundation.

A young girl was walking along a beach upon which thousands of starfish had been washed up during a terrible storm. When she came to each starfish, she would pick it up, and throw it back into the ocean. People watched her with amusement.
She had been doing this for some time when a man approached her and said, “Little girl, why are you doing this? Look at this beach! You can’t save all these starfish. You can’t begin to make a difference!”
The girl seemed crushed, suddenly deflated. But after a few moments, she bent down, picked up another starfish, and hurled it as far as she could into the ocean. Then she looked up at the man and replied, “Well, I made a difference for that one!”

Taxpayers as struggling starfish is an adept analogy. Further, the capacity of attorneys as tax practitioners not to be intimidated by conclusory IRS letters demanding repayment can truly help those struggling starfish. I have to admit, though, that I had a prejudice that was corrected as I prepared this Pro Bono Matters article for ATT. I had always thought that Big Law Pro Bono departments would only like to do impact litigation cases. Why would tax attorneys that structure multi-million-dollar deals want to help little starfish taxpayers, when there is an entire beach filled with struggling starfish? Would they think it was a waste of their litigation skills and large firm resources?

When I asked JoAnne Mulder Nagjee, of counsel at the Chicago Kirkland and Ellis office, what criteria (personal and firm-wide) was used to take on pro bono tax cases, I was pleasantly surprised at her response.

Personally, I am happy to work on most tax controversy matters involving low-income, individual taxpayers, without regard to the underlying substantive issue. Frozen refunds and increases in tax liabilities due to the loss of the earned income tax credit or other exemptions frequently mean the loss of critical funds for these clients. When you help these low-income clients reach a favorable resolution of their tax disputes, you often are removing a huge source of stress from their lives and meaningfully improving their financial (and often emotional) well-being. While impact litigation or cases that present novel legal issues can be exciting and are always of interest, it also is immensely satisfying to make a meaningful impact on the life of just one individual or family.

Taxpayers are not inanimate starfish that can be thrown back

Dear reader, Socratic training is well ingrained in you. I can already hear the protests because they are echoing in my mind as well. Yes. I, too, was once a 1L student. I understand that starfish don’t have free will and I am not a giant that can solve a taxpayer’s problem with a flick of the wrist. The analogy does fail when taken too literally, but it does help encapsulate the concept well. I do concede that even though there may be a beach full of starfish taxpayers, one cannot simply start saving starfish taxpayers randomly. So then, how exactly does one go about this in a thoughtful manner?

Let’s not reinvent the wheel. Your firm’s Pro Bono Department (if you have one) is always a good place to begin. Perhaps your firm already has an existing relationship with a legal aid clinic in town, and it would be easy to simply volunteer at a place pre-approved by your firm. Great! You would be surprised how often crossover tax issues arise in other classic legal aid arenas. Even if your local legal aid does not house a tax clinic, offering your services to the domestic violence or immigration unit can be quite helpful.

I spoke with staff attorney, Sharon Paik, from the Legal Aid Foundation of Los Angeles, a former LITC attorney, to ask what issues she saw at LAFLA. She responded, “You’d be surprised how often tax issues creep up. Because of my background, it’s easier for me to issue-spot.” She has seen everything from potential tax preparer misconduct, innocent spouse cases, and the need to file amended returns to CSED (collection statute expiration date) tax issues. I asked how immigration could be a tax issue? She answered that “sometimes when they apply for immigration relief, they have to prove good-faith marriage. But it’s surprising to see how often the husbands have filed tax returns as single.” My jaw dropped. I could easily see how an immigration practitioner would think “full stop; end of story; there’s nothing you can do about it since he already filed the return.” As we tax practitioners know, however, there are several options to correct the record or argue it was an invalid return. Clearly, you do not have to go to an LITC to find opportunities to volunteer to do tax work. Your local legal aid may well need your services. If you are in the Los Angeles area, consider contacting LAFLA’s Pro Bono department to volunteer your tax expertise—even if it’s not in their existing “scope of services.”

Helping a cause you believe in

If you don’t have a firm Pro Bono department, I recommend starting with your heart. After all, this is extra time in addition to all your other life obligations. It makes sense to volunteer for an organization or a cause that is meaningful to you personally.

As an Asian American, I felt burdened and disturbed by the recent media images of hate crimes against Asian grandmas who were flung on sidewalks. While I don’t want to discourage charitable cash contributions to these causes, I do want to encourage each member of the tax bar to dig deeper into your personal causes to see whether there is an exempt organization behind the cause that could potentially benefit from your tax expertise. For example, www.standagainsthatred.org is a multi-lingual site committed to documenting Asian hate crimes. When you dig deeper, you will see it is a project of Asian Americans Advancing Justice (AAAJ). After exploring their website, I saw that one of the legal services they offer is SAFE (Survivor And Family Empowerment), working with victims of domestic violence. I called the Advancing Justice - Los Angeles office and spoke with staff attorney Patricia Park to see whether she saw any crossover tax issues at SAFE. What a pleasant surprise to find out that she herself was a former VITA (Volunteer Income Tax Assistance) volunteer! She highlighted several tax issues domestic violence survivors face. For example, abusers may receive and keep stimulus checks or the single-year Advance Child Tax Credit under the American Rescue Plan Act for themselves, even though the wife and children have long ago left the abuser. She often sees that the abuser may have incurred considerable tax debts or liabilities from self-employment earnings, and the now-separated spouse starts to receive letters addressed to her for the first time demanding thousands of dollars in repayment. Again, don’t let the fact that your favorite charity or cause in which you are interested does not have a tax clinic deter you from inquiring about ways you might be able to help their clients solve related tax problems.

Perhaps you feel passionate about equal access to solar electricity. I am learning that not all volunteer tax work falls into the “controversy” universe. For example, Milbank’s New York office tax partner Drew Batkin worked with Lawyer’s Alliance for New York and their firm’s Energy and Finance counsel to help an exempt organization understand the special tax benefits and financing of green energy so that a project could move forward. This permitted their low-income housing project to get access to the private sector’s green energy expertise (normally a luxury low-income housing cannot afford). The private sector company could structure the tax credits in a way that they did not go to waste for the exempt organization that did not pay income taxes and had no use for tax credits otherwise. A win-win situation in every respect.

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The moral of this starfish tale? Consider causes that are dear to your heart, find a place that serves those causes, and volunteer to help with any tax-related aspects. 

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