Clint J. Locke
Instructor, The University of Alabama, Culverhouse School of Commerce
The mission of the IRS Office of Chief Counsel is to serve America’s taxpayers by impartially and fairly administering the tax laws while simultaneously providing high quality legal representation to the commissioner of the IRS. At first glance this mission seems appropriately balanced between public service and legal enforcement. However, further deliberation creates uncertainty as to how such a mission can be accomplished. ABA Model Rule 1.7 prevents attorneys from representing two clients in the same litigation proceeding when the interests of such clients are directly adverse to each other. Can IRS attorneys ethically serve the public and serve the IRS?
When a taxpayer files a Tax Court petition in response to a notice of deficiency, an adversarial relationship arises between the IRS attorney and the taxpayer. This adversarial relationship exists within the judicial system and is contained within one specific Tax Court proceeding. As a result, Model Rule 1.7 prevents an IRS attorney from representing the IRS and serving a taxpayer, regardless of informed consent.
It could be argued that representation of the IRS as a client and service to a taxpayer are two separate and distinct relationships, such that dual representation is not implicated. This argument carries particular weight when a taxpayer is represented by an attorney. However, a majority of Tax Court cases are filed pro se, putting the IRS attorney in a conflicting role. The IRS attorney is now tasked with representing the IRS position, while at the same time informing the taxpayer of legal and factual issues.
There can be no question that the IRS attorney will be aware of factual or legal weaknesses in a taxpayer’s position. The questions that do exist are: (1) which weaknesses will the IRS attorney reveal to the taxpayer, and (2) which legal authorities will the IRS attorney share with the taxpayer? Representation of the IRS position directly conflicts with service to the taxpayer. Sharing a factual weakness with the taxpayer will be at the expense of the IRS position. Informing the taxpayer of a specific legal authority will bolster the taxpayer’s argument or assist the taxpayer in meeting the factual requirements of the law. Consequently, in the pro se context, public service crosses over into a quasi-client representation relationship. This relationship is ethically impermissible pursuant to Model Rule 1.7.
Clearly there are circumstances, particularly with respect to IRS attorneys serving in the national office, where an IRS attorney can effectively and ethically enforce the law and serve the public. However, as administration and enforcement of the law moves into the field offices, it becomes much more difficult for these two purposes to coexist.