Abstract

In recent years the question of whether lawyers have a general ethical obligation to serve a gatekeeping function has been raised in a number of legal contexts. The reaction of the practicing bar generally has been unenthusiastic. While asserting that a gatekeeping function should be generally applicable to all attorneys is a relatively recent stance, such an obligation historically has been acknowledged to various degrees in several specific practice areas, including particularly in the field of federal income taxation. This piece examines the gatekeeping question, and how the practicing bar should react to it, through an examination of the gatekeeping role historically asserted as applicable to tax lawyers, including how modern pressures (e.g., literalist statutory interpretation, profit maximization law firm models, changing business and societal ethical norms, etc.) have altered that historically asserted ethical norm. The article then suggests avenues for combating these modern trends in the tax arena in order to strengthen and reestablish the historic balance in a tax lawyer’s planning role (e.g., by creating intentional conflicts of interest to create a “divide and conquer” dynamic between clients and attorneys in aggressive transactions, emphasizing the ethical training of tax attorneys, clarifying the proper approach for statutory interpretation in the tax context, creating disincentives for a legal race to the bottom among attorneys competing for business, highlighting the importance of individual trend setters, channeling the competitive pressures in the legal marketplace in the government’s favor, etc.). The piece concludes with some closing thoughts regarding the lessons that the practicing bar might take from the tax gatekeeping example in their future reactions to gatekeeping initiatives in other areas of the law and accepting gatekeeping as a generally applicable ethical norm.

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