Can a California lawyer publicly advocate civil disobedience (here, refusal to pay taxes) and simultaneously maintain a tax law practice?

Currency note

This opinion was issued in 2003, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 3-110, 3-200, 3-210, and 3-310, together with Business and Professions Code sections 6067, 6068(a), 6068(c), and 6103. Current Rules 1.1 (competence), 1.2(d) (counsel respecting illegal conduct), 1.7 (conflicts), 1.16 (declining representation), and 8.4 (misconduct) now address these issues; the analysis below is rooted in the framework as it stood in 2003. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The hypothetical: Attorney maintains a practice in business transactional work, estate and tax planning, and tax controversy. She sincerely believes the tax system is immoral and has joined an anti-tax association. She speaks at the association's conferences, proposing that individuals and small businesses refuse to report transactions to the Franchise Tax Board and IRS and refuse to pay taxes. She has not represented the association. She receives substantial client referrals from her contacts in the organization. In counseling clients, she advises lawful behavior.

On public advocacy of civil disobedience: The committee identified no California law forbidding advocacy of tax-law violations and noted that any such law would face First Amendment problems under Brandenburg v. Ohio (1969). Attorney's status as a lawyer does not change the analysis. The committee distinguished, however, between advocating and engaging in violations of law. Attorneys are subject to discipline for illegal conduct even outside the practice of law. The committee cited In re Rohan (1978) on revenue-law violations, In re Kelley (1990) on repeated drunk-driving convictions, and In re Morales (1983) on failure to withhold or pay taxes.

On advising clients to violate the law: An attorney may not advise a client to violate the law unless she reasonably and in good faith believes the law is invalid (former Rule 3-210), and may not accept or continue employment if she knows the client's purpose is to present a claim or defense not warranted by existing law absent a good-faith argument for extension, modification, or reversal (former Rule 3-200). The committee further cited Business and Professions Code section 6068(a) (duty to support the Constitution and laws), section 6068(c) (duty to maintain only such actions as appear to her legal or just), and section 6103 (discipline for violation of duties).

On disclosure under former Rule 3-310: The committee walked through subdivisions (B)(1), (B)(2), (B)(3), and (B)(4). Because the association is neither a party nor a witness in the tax clients' matters, (B)(1) and (B)(2) do not apply. Because the association is not the subject matter of the representation, (B)(4) does not apply. (B)(3) requires written disclosure where the lawyer has a relationship with a person or entity the lawyer knows or reasonably should know would be substantially affected by the resolution of the matter; on the facts presented, the committee identified no facts that implicated (B)(3). Whether (B)(3) would apply depends on the totality of circumstances including the scope and object of the client's engagement.

On competence: Former Rule 3-110 defines competence as the diligence, learning and skill, AND "mental, emotional and physical ability reasonably necessary for the performance of such service." The committee observed that an attorney's strong beliefs may even give her particularly sophisticated knowledge of tax law and procedure. But if her mental or emotional state prevents her from making an objective evaluation of the client's position, providing unbiased advice, or carrying out the client's directions, she would violate the duty of competence. The committee cited Blanton v. Womancare (1985), Considine v. Shadle, Hunt & Hagar (1986), California State Bar Formal Opinion 1984-77, and Los Angeles County Bar Formal Opinion 504 (2001). Footnote 4 expressly declined to opine on whether there may be a duty to communicate to clients the possible impact of the lawyer's views, or the taxing authorities' knowledge of those views, on outcomes.

Common questions

Q: May a California lawyer publicly advocate that taxpayers refuse to pay taxes?

A: Per the opinion, yes, subject to the limits the First Amendment imposes (Brandenburg v. Ohio (1969) places advocacy of unlawful action outside protection only when directed to inciting or producing imminent lawless action and likely to do so). The committee identified no California rule forbidding such advocacy by attorneys, distinguishing advocacy from engaging in violations.

Q: May the lawyer advise her tax clients not to pay taxes that are due?

A: Per the opinion, no. Former Rule 3-210 prohibits advising a client to violate the law unless the lawyer believes in good faith that the law is invalid. Former Rule 3-200 prohibits accepting or continuing employment if the lawyer knows the client's purpose is to present a claim or defense not warranted by existing law absent a good-faith argument for modification or reversal. Business and Professions Code sections 6068(a), (c) and 6103 reinforce these duties.

Q: Does the lawyer have to disclose her association activities and beliefs to clients under former Rule 3-310?

A: Per the opinion, on the facts presented, no. The association is not a party or witness (so (B)(1) and (B)(2) do not apply), not the subject matter (so (B)(4) does not apply), and the facts presented did not implicate (B)(3). Whether (B)(3) would apply depends on totality of circumstances including the scope and object of the engagement.

Q: Can the lawyer competently represent tax clients given her strong personal beliefs?

A: Per the opinion, possibly yes, possibly no. The committee observed that strong beliefs can produce particularly sophisticated knowledge. But competence under former Rule 3-110 has a "mental, emotional and physical" component, and if the lawyer's emotional state prevents objective evaluation, unbiased advice, or representation consistent with the client's directions, she would violate the duty of competence. The opinion did not require a categorical exclusion from the field of practice.

Q: Did the committee opine on whether the lawyer must disclose her tax views to clients?

A: No. Footnote 4 expressly declined to opine on whether there may be a duty to communicate to clients the possible impact of her views, or the taxing authorities' knowledge of those views, on the outcome of the representation.

Background and rules framework

The opinion interprets former California Rules 3-110 (competence), 3-200 (rejecting employment to assert non-meritorious position), 3-210 (advising violation of law), and 3-310 (avoidance of representation of adverse interests), together with Business and Professions Code sections 6067 (oath), 6068(a) (support of Constitution and laws), 6068(c) (only just actions), and 6103 (discipline for violation of duties). Functionally these correspond, in current California numbering, to Rules 1.1 (competence), 1.2(d) (counseling unlawful conduct), 1.7 (conflicts), 1.16 (declining representation), and 8.4 (misconduct).

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-110(A), (B), (C)
• Former California Rule 3-200
• Former California Rule 3-210
• Former California Rule 3-310(A)(1), (B)(1), (B)(2), (B)(3), (B)(4)

Statutes:

• California Business and Professions Code sections 6067, 6068(a), (c), 6103

Cases:

• Brandenburg v. Ohio (1969) 395 U.S. 444, advocacy protected unless directed to imminent lawless action
• Standing Committee on Discipline v. Yagman (9th Cir. 1995) 55 F.3d 1430, lawyer speech limits
• In re Palmisano (7th Cir. 1995) 70 F.3d 483, lawyer discipline for criticism of judges
• In re Rohan (1978) 21 Cal.3d 195, discipline for willful failure to file tax returns
• In re Kelley (1990) 52 Cal.3d 487, discipline for drunk-driving recidivism
• In re Morales (1983) 35 Cal.3d 1, discipline for failure to withhold and pay taxes
• Blanton v. Womancare (1985) 38 Cal.3d 396, lawyer's duty of competence
• Considine v. Shadle, Hunt & Hagar (1986) 187 Cal.App.3d 760, competence duty

Other opinions cited:

• California State Bar Formal Opinion 1984-77: competence and emotional ability
• Los Angeles County Bar Association Formal Opinion 504 (2001): mental and emotional component of competence

See also

• CA COPRAC Op. 2003-163: Corporate constituent personal representation conflicts
• CA COPRAC Op. 2002-160: Missing client settlement authority

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/2003-162_96-0007-wpd-PAW.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2003-162

ISSUE: What ethical issues are raised when a California attorney publicly advocates civil disobedience, including violations of law, in furtherance of her personally-held political, moral, or religious beliefs, and simultaneously practices law?

DIGEST: While attorneys have rights under the First Amendment to express political, moral, and religious beliefs and to advocate civil disobedience, attorneys must follow their professional responsibility when acting upon their beliefs and when advising clients. At a minimum, attorneys' performance of their professional duties to clients must not be adversely affected by the attorneys' personal beliefs or exercise of First Amendment rights. In selecting areas of legal practice, types of cases and particular clients, attorneys should be cognizant of the possibility that their moral, social, and religious beliefs, and their exercise of their First Amendment rights, could adversely affect the performance of their duties to clients.

AUTHORITIES INTERPRETED: Rules 3-110, 3-210, and 3-310 of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code sections 6067, 6068, subdivisions (a) and (c), and 6103.

STATEMENT OF FACTS

An attorney (Attorney) maintains a law practice emphasizing business transactional work, estate and tax planning services, and tax controversy matters. She believes sincerely that the entire state and federal tax system is immoral, and has joined an association (Association) that opposes taxation of individuals and family businesses.

She has spoken at Association conferences and advocated resistance to the state and federal tax systems. In these speeches, she has proposed that individuals and small businesses refuse to report to the Franchise Tax Board and the Internal Revenue Service any transaction or event that might lead to the imposition of income, capital gains, or estate taxation, and has advocated that they also refuse to pay taxes.

Attorney has never represented Association, but she receives a substantial number of client referrals from her speeches on behalf of and through her contacts in the organization. While she has publicly advocated civil disobedience, Attorney advises lawful behavior in counseling her clients.

What ethical considerations govern Attorney's activities?

DISCUSSION

I. Is it ethically permissible for Attorney to publicly advocate the refusal to pay taxes?

The facts do not identify the existence of a law prohibiting advocacy of violations of state or federal tax laws. Even if there were such a law, it might well violate the First and Fourteenth Amendments guarantees of free speech and assembly. A state may not forbid or proscribe the advocacy of a violation of law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. (Brandenburg v. Ohio (1969) 395 U.S. 444 [89 S. Ct. 1827].)

Attorney's status as a lawyer does not change the analysis. To the extent speech is constitutionally protected, Attorney has the First Amendment right to advocate political and social change through the violation of law, even though the First Amendment rights of lawyers are limited in certain respects. (See Standing Committee on Discipline v. Yagman (9th Cir. 1995) 55 F.3d 1430 and In re Palmisano (7th Cir. 1995) 70 F.3d 483, cert. denied, 116 S. Ct. 1854 (1996) [both dealing with the special problem of discipline for attorneys who publicly criticize judges].)

The Committee notes, however, the distinction between advocating and engaging in violations of law. Attorneys are subject to discipline for illegal conduct even if their conduct occurs outside the practice of law and does not involve moral turpitude. As the California Supreme Court stated in the seminal case of In re Rohan (1978) 21 Cal.3d 195, 203 [145 Cal.Rptr. 855], explaining why discipline was appropriate for an attorney's criminal conviction of wilful failure to file tax returns: "An attorney as an officer of the court and counselor at law occupies a unique position in society. His refusal to obey the law, and the bar's failure to discipline him for such refusal, will not only demean the integrity of the profession but will encourage disrespect for and further violations of the law. This is particularly true in the case of revenue law violations by an attorney." (See also In re Kelley (1990) 52 Cal.3d 487 [276 Cal.Rptr. 375]; In re Morales (1983) 35 Cal.3d 1 [96 Cal.Rptr. 353].)

II. Is it ethically permissible for Attorney to advise her clients not to pay taxes that are due under applicable law?

It is important to distinguish between Attorney's exercise of her First Amendment rights and her performance of her duties as a lawyer for clients. By virtue of her participation in and speech on behalf of the Association, Attorney has been retained by clients because of the political and social views she publicly has taken regarding the payment of taxes. Although a lawyer may advocate political and social change through the violation of tax laws, she may not advise a client to violate the law unless she believes reasonably and in good faith that such law is invalid and there is a good-faith argument for the modification or reversal of that law.

III. Does Attorney have an ethical duty to disclose her relationship with Association and her position on taxation to prospective and existing clients?

An attorney may not accept or continue the representation of a client, if the attorney has any of the several potential or actual conflicts of interest listed in rule 3-310 of the California Rules of Professional Conduct, absent "written disclosure" to and, in many instances, "informed written consent" from, the client or potential client. Together, the written disclosure requirements in paragraphs (B)(1) and (B)(2) of rule 3-310 apply when a lawyer has or had "a legal, business, financial, professional or personal relationship with" a party or witness in the same matter in which the lawyer represents the client. Paragraph (B)(4) of the rule applies when a lawyer "has or had a legal, business, financial, or professional interest in the subject matter of the representation." As the Association is neither a party or witness in the matters of Attorney's tax clients, no disclosure pursuant to paragraphs (B)(1) or (B)(2) would be required. Similarly, as the Association is not the subject matter of the Attorney's representation of tax clients, no disclosure pursuant to paragraph (B)(4) would be required either.

We recognize that paragraph (B)(3) might appear at first glance to be applicable to Attorney. This part of the rule states that a lawyer shall not accept or continue the representation of a client without providing written "disclosure" to the client or potential client where the attorney has or had a "legal, business, financial, professional, or personal relationship with another person or entity" which the attorney "knows or reasonably should" know would be "substantially affected by resolution of the matter." However, there are no facts that implicate paragraph (B)(3). Whether Attorney "knows or reasonably should know" that the Association would be "substantially affected by the resolution of the matter" depends on the totality of the circumstances. These circumstances might include such things as the scope and object of the client's engagement of Attorney.

IV. Can Attorney competently represent clients in business and taxation matters?

Attorney has publicly advocated that others resist state and federal tax laws by refusing to report transactions and events on which taxation could be imposed, and by refusing to pay taxes. While her constitutional rights of speech and assembly may permit her such advocacy, they do not alter her duties to her clients.

These duties include the obligation to provide competent representation found in rule 3-110 of the California Rules of Professional Conduct. Business and Professions Code section 6067 requires that attorneys admitted to practice in California take an oath that includes a promise "faithfully to discharge the duties of an attorney to the best of his [or her] knowledge and ability."

Attorney's personal views and public comments regarding taxation do not necessarily render her unable to competently represent a client in a tax matter. Indeed, it is possible that because of her strong beliefs Attorney has a particularly sophisticated knowledge of the substantive law and the procedures that could be pertinent to her work on tax matters. Despite this possibility, it is important to recognize that the duty of competence includes an emotional component. Rule 3-110 prohibits intentional, reckless or repeated incompetence and defines "competence" as the application of "the 1) diligence, 2) learning and skill, and 3) mental, emotional and physical ability reasonably necessary for the performance of legal services." (Italics added.) Thus, if Attorney's mental or emotional state prevents her from performing an objective evaluation of her client's legal position, providing unbiased advice to her client, or performing her legal representation according to her client's directions, then Attorney would violate the duty of competence. (See Blanton v. Womancare (1985) 38 Cal.3d 396, 407-408; Considine v. Shadle, Hunt & Hagar (1986) 187 Cal.App.3d 760, 765; Cal. State Bar Formal Opn. No. 1984-77; and L.A. Cty. Bar Assn. Formal Opn. No. 504 (2001).

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the state Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.