Article on Ethics Issues in Referring Clients to Foreign Aggressive Tax Planners/Enablers (12/27/18)

Tax Crimes enthusiasts may be interested in this law review article:  Heather M. Field, Offshoring Tax Ethics: The Panama Papers, Seeking Refuge From Tax, and Tax Lawyer Referrals,, St. Louis U L.J.  62 St. Louis U. L.J. 35 (2017), here.  Excerpts (footnotes omitted):

Despite the investigative research and scholarly analyses of the Panama Papers, many questions remain, including: How did U.S. clients get to the Panamanian law firm of Mossack Fonseca? What were the ethical responsibilities of the individuals (particularly lawyers) who connected these U.S. clients with MF, especially in cases where the U.S. clients sought offshore assistance in order to avoid or evade U.S. taxes? And what, if anything, should individuals in similar situations do differently in the future? 

This Essay starts to answer these questions, and in doing so, fills a gap in the literature. Existing literature on lawyer referrals is relatively limited and generally focuses on referral fees, lawyer referral services, and malpractice actions for negligent referral. And while there is literature about professional responsibility in cross-border matters, discussions of referrals to foreign counsel are relatively brief and tend to focus on malpractice risk for negligent referral or on aiding and abetting the unlicensed practice of law. This Essay considers a specific, and previously unaddressed, type of cross-border referral—one for clients seeking help with offshore tax avoidance or evasion. This situation raises different ethical concerns and implicates tax-specific penalty provisions and standards of conduct. 

This Essay argues that, although the rules governing ethical tax practice generally do not prevent a U.S. lawyer from referring a client to a firm like MF for potentially aggressive tax planning, a lawyer who does so without very careful reflection “passes the buck” for ethical tax practice onto the next lawyer. Rather than expatriating responsibility for the tax practice ethics of representing the client, each lawyer should internalize more of that responsibility and should not blithely provide referrals. 

This Essay proceeds by describing what the Panama Papers reveal about client referrals to MF, after which the Essay briefly explains how the general ethical rules, tax-specific standards of practice, tax penalty provisions, and other constraints apply to a U.S. lawyer making a referral to a firm like MF. The Essay then argues that lawyers should adhere to higher standards when considering such referrals.

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CONCLUSION 

For a lawyer who wants to be more cautious than required when responding to a request for a referral for assistance with offshore tax planning, options include declining to provide a referral and complying with additional good practices that were developed in other contexts, such as for matters that could involve money laundering or financing of terrorist activities. Although a comprehensive discussion about exactly what steps should be taken by this lawyer is outside the scope of this Essay, this Essay makes the case that a lawyer should think very carefully before providing a referral to an aspiring offshore tax evader. When considering whether to make a referral, lawyers can and should do more than is required to avoid sanctions and liability. Lawyers should internalize, rather than offshore, more responsibility for ethics and compliance. 

Ultimately, by taking more personal responsibility for the consequences of the referrals they make, lawyers can make it ever so slightly harder for aggressive taxpayers to get assistance with tax evasion. This would simultaneously enhance the integrity of the tax profession and improve compliance.

Hat tip to the TaxProf Blog, here.