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Abstract

Recently 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 has generally been unenthusiastic. While the assertion that a gatekeeping function should be applicable to all attorneys is a relatively modern stance, such an obligation has historically been acknowledged to various degrees in several practice areas, including federal income taxation. This Article 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) have altered that historically asserted ethical norm. This Article then suggests avenues for combating modern trends in the tax field in order to strengthen and reestablish the historic balance in a tax lawyer’s planning role (e.g., using 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 trendsetters, and channeling the competitive pressures in the legal marketplace in the government’s favor). This Article concludes by suggesting that the practicing bar should take lessons from the tax gatekeeping example in its future reactions to gatekeeping initiatives in other legal arenas and accept gatekeeping as a generally applicable ethical norm.

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