The Tax Man\u27s Ethics: Four of the Hardest Ethical Questions for an IRS Lawyer

The traditional approach to legal ethics often is characterized to mean that lawyers must zealously advocate for their clients’ objectives tempered only by the bounds of the law. In contrast to the traditional approach, the public interest approach to legal ethics extends a government lawyer’s professional ethical duties from the agency client to the public at large to further the public interest. Commentators, in advocating either the traditional approach or the public interest approach to government lawyering, disagree about whether a government lawyer owes some sort of duty to the public and if so, the nature and scope of that duty. My article proposes that the traditional approach and the public interest approach are not mutually exclusive. Rather, this article describes an approach to legal ethics that simultaneously serves the agency client’s interest and the public interest by exploring the ethical responsibilities of lawyers of the Internal Revenue Service Office of Chief Counsel, the in-house law firm for the IRS, in the context of the following four hypothetical situations: (1) remaining silent in the face of an expired statute of limitations; (2) affirmatively raising a defense to defeat a taxpayer’s meritorious claim; (3) continuing to litigate a losing case; and (4) conceding a winning case. An approach that melds the traditional and public interest approaches resembles in some respects the Contextual View of lawyering developed by Professor William Simon of Columbia Law School. According to Professor Simon, a lawyer following his Contextual View should “take those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice,” where justice is synonymous with “legal merit”. Getting the correct legal answer is paramount under Professor Simon’s Contextual View, although a lawyer applying the Contextual View can still be a zealous advocate for the client if the client’s position is consistent with the underlying legal merits of the case