be contentious. In addition, because these transactions were intertwined with

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1 be contentious. In addition, because these transactions were intertwined with clients business affairs, courts were likely to defer to them on this subject. Elite tax lawyers during this period tended to take a view of a tax advisor s professional obligations that was sensitive to society s interest in a wellfunctioning tax system. There was not complete unanimity on the scope of an advisor s obligations and various practitioners formulated their responsibilities in different ways. Nor was it possible to express practitioner norms in the form of explicit rules; expectations represented more of a general approach to how a good tax lawyer was supposed to counsel a client in particular situations. Nonetheless, there was a broad consensus within the elite bar that professional judgment that drew on multiple considerations beyond the literal terms of the tax code imposed a limit on how far a lawyer should go to minimize a client s tax liability. This view persists today among many members of the elite tax bar, but there was an especially strong agreement on it until the last two or three decades of the twentieth century. This consensus drew a distinction between the tax advisor and the tax advocate. The organized tax bar has consistently insisted on this distinction in its struggles over the years with the American Bar Association regarding the professional responsibilities of tax lawyers. In various pronouncements, The ABA 106

2 nondiscovery into the risk assessment. 111 The result is a proposal that corrupts the fabric of the tax system, destroying distinctions between ordinary income and capital gain. 112 The partner doubts that the courts will accept it, but even if they do, it is surely mad to allow it, since it would produce a system where the rich, who could afford to go into these manipulations, could freely convert ordinary income to capital gain and move income around from year to year as they see fit. 113 This would require Congress to respond with legislation to address the situation, which would add to the complexity of the tax system. The partner notes that when he was actively involved in tax practice, I thought there was some mix in my duty. It was not unalloyed avoidance-seeking, but had at least a measure of allegiance to the fisc and to higher principle. Some things were wrong, even if they worked. 114 The elite tax bar thus traditionally formulated a conception of the tax advisor s role that stops short of the unqualified devotion to the client that characterizes the advocate. While some members of the bar have characterized this role as involving responsibilities to both the client and the tax system, others have suggested that the advisor s obligations flow from an appreciation of the client s enlightened self-interest. Seymour Mintz, for instance, suggested that the tax lawyer need not usually confront the question about where duty lies because it is just good tax practice and good tax business to try to minimize the adversary 115

3 {Insert verso running head} {Insert recto running head} 9 Lowering the Bar The tax shelter crisis almost certainly generated the largest number of criminal prosecutions against lawyers in connection with any set of events in United States history. At least twenty-nine lawyers were charged in an indictment or criminal information for their work on abusive tax shelters. Some were involved in private practice, while others worked in accounting or financial services firms. Seven were convicted, eleven pled guilty, one was acquitted, two had their convictions reversed on appeal, two were convicted but are awaiting a new trial because of juror dishonesty during voir dire, one is a fugitive from justice, and five had their indictments dismissed when KPMG terminated payment of their attorneys fees at the behest of the government. 1 Other lawyers who were not prosecuted were publically criticized because of their work on abusive shelters. Although prosecutions have mainly focused on the activities of individual lawyers, their tax shelter activities were very much a product of the organizations in which they worked. Accounting firms, as previous chapters underscore, created organizational structures and incentives that rewarded shelter participation. In law 398

4 firms, different organizational influences tended to operate. Jenkens took on Daugerdas and his tax shelter practice as a part of a strategy to get ahead in the increasingly competitive market for legal services. Firm leaders failed to appreciate the significant risks of the shelter work. What risks they did recognize they wrongly believed they could manage successfully. At other firms, tax shelter activity was often seen and characterized as rogue behavior the behavior of individual lawyers who had become involved in the market without the firm s permission and knowledge. It was rogue behavior, however, that was facilitated by the loose oversight structure characteristic of law firms. In addition, it was behavior that inured to firms financial benefit. Designing tax shelters and writing shelter opinions brought in substantial fees that not only enriched firm partners but also enhanced firms profiles in the never-ending challenge to stay competitive. Under these circumstances it was not difficult for firm leaders to turn a blind eye to shelter activity. Brown & Wood: Opinions R Us As the twentieth century drew to a close, New York-based Brown & Wood was a prestigious law firm with a high profile in capital markets work. The firm, founded in 1914, was especially well-known for its representation of issuers and underwriters in securities offerings. From 1993 through the end of 1996, Brown & 399

5 these firms devoted substantial organizational resources to developing and marketing tax shelters. They aligned organizational incentives, including compensation and advancement at the firm, with revenue production tied to shelter development and sales. On one level, the alignment of formal mechanisms with shelter activity was a signal to tax professionals at the firms that if they wanted to succeed they needed to participate in such activity. In some instances, participants believed with good reason that their positions at the firm were at stake. But the message worked at a deeper level as well. By using the power of their positions to encourage tax shelter activity, tax leaders were communicating their view that these activities were appropriate. Tax leaders, who functioned as role models, fostered a culture in which involvement in tax shelter activity was not only not problematic; it was consistent with high standards of client service and a commitment to the success of the firm. The institutionalization of shelter activity thus did more than simply dictate the terms of a rational calculation of costs and benefits, in which participating in a shelter promoted one s career avoiding it led to career setbacks. Explicitly organizing business units around shelter work valorized it, shifting its normative valence. Tax shelter practice was not an arguably questionable activity. It was good. 604