Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation

Abstract

Each profession entails a risk for a different kind of casual conversation its members must endure. Medical doctors probably endure casual conversations about pains and rashes, second guesses of primary care physicians, and disorganized thoughts about health care reform, prescription drugs, vitamin C, and chelation. Pastors, priests, and rabbis probably endure unbridled enthusiasm for ecumenical dialogue and experience. Lawyers listen to horror stories of divorce and custody battles, disorganized thoughts on tort reform, and, of course, lawyer jokes, most of which are not new, few of which are funny, and none of which are clever. Specialists within each profession suffer with specific conversations. The psychiatrist and the dermatologist risk different conversations, as do the tax lawyer and the criminal defense lawyer. The conversational risks of tax lawyers are fairly predictable. First are those conversations premised on confusing us with accountants, usually beginning with an inquiry as to our annual April 15th-related workload. Second are political conversations, usually about tax rates—especially those on capital gains, corporations, and estates. Some while back, the conversation was likely to begin with the wonders of the so-called flat tax, and no doubt the flat tax proposals will circle back again in our casual conversations. (Recently a medical doctor engaged me on the wonders of the flat tax, and given his conversation ensued during a medical procedure, I found myself more enamored with the proposal than ever before.) Perhaps the most common political tax topic at the moment is the income tax burden borne at the top and the income tax ease enjoyed on the bottom. The third common casual conversation topic for tax lawyers has to do with tax gimmicks and, especially, rumors of tax gimmicks. With this kind of conversation, tax lawyers are fairly skilled in conversational evasiveness, worrying about unintentionally forming an attorney-client relationship. Our fears related to this kind of conversant are not merely avoiding ethical issues or providing undeserved free legal advice but more so avoiding inviting him or her into a professional relationship. Clients interested in the latest tax gimmicks must be avoided, and those willing to chat-up strangers about tax advice are especially to be avoided.