Thursday, May 6, 2004

Guidelines to Tax Practice Third, by the late Frederic G. Corneel of Sullivan & Worcester in Boston (where I got my start), has been posted on SSRN. Here is part of the abstract:

. . . . [T]his paper has two parts. The first part consists of a set of suggested general guidelines. The second part addresses specific problems arising in several areas of tax practice.

The guidelines for each firm will be helpful only if they reflect the particular practice of the firm. The first one, set out below, was drafted for my own firm, where most of the practice is in tax planning for business or personal transactions. However, at least to acknowledge other fields of practice, there follow considerations bearing on guidelines for tax lawyers engaged in criminal tax practice, tax lawyers who are working as corporation counsel and tax lawyers who have been unable to resist the lure (or perhaps lucre) of the Final Four and have become tax lawyers working in accounting firms.

Of course, the basic rules applicable to the conduct of a tax lawyer do not vary, regardless of the lawyer’s specialty or place of employment. But rules of conduct to be useful must reflect the context in which they are to be applied. Thus, both an SEC registration statement and a tax return require the lawyer preparing the document to be honest. But the degree of disclosure and the required certainty as to the correctness of what is stated may be different. Therefore, to be helpful, the guidelines of any firm should seek to address the specific aspects of its practice where problems are likely to arise.

The need for specificity in deciding upon the appropriate application of potentially conflicting rules requires caution in the use of these and any other guidelines. What they provide may be generally true, but in a particular situation quite a different course of conduct may be indicated. Nevertheless, the general guidelines supplemented by the second part of this paper hopefully will help the lawyer using them to have a basic understanding, which is fine as long as the lawyer is clear that in any particular case they do not tell the whole story.

Do notice that these guidelines focus on what should be done and not how far we may deviate from accepted standards without exposing ourselves to penalties, disbarment or malpractice liability. Of course, in practice we will from time to time feel forced to go to the limits of what is permissible. But our teaching should relate to the center of the highway. If what we teach is driving on the edge, the young lawyer will soon wind up in the ditch and perhaps we and our firm with him.