Can a former IRS agent later represent a taxpayer on the same returns he examined for the government?

Plain-English summary

Before becoming a lawyer, the inquirer worked for the IRS and, in that role, examined a certain taxpayer's returns. He later graduated from law school and became counsel for that taxpayer, causing amended returns to be filed for years that included the returns he had examined as an agent, which increased the tax. The IRS now wished to examine the amended returns on perhaps different matters, and the lawyer asked whether he could represent the taxpayer for the same years he had examined as an IRS agent.

The committee answered in the negative, because DR 9-101(B) precludes a lawyer in private employment from handling a matter in which he had substantial responsibility while a public employee (citing also EC 9-3 and 18 U.S.C. 207(a)). It added that even though the new examination might involve a different matter from the original audit, the answer was the same, because avoidance of the appearance of professional impropriety is the crux, and because the ultimate purpose of a tax examination, determining the taxpayer's liability, does not vary even when the approach differs across examinations of the same period.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 9-3; DR 9-101(B)), the subject matter of which (former government lawyers and officers) is now addressed by Rule 4-1.11. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a former IRS agent represent a taxpayer whose returns he audited for the government?

A: Under this opinion, no, as to the same years he examined. DR 9-101(B) bars a lawyer from handling a matter in which he had substantial responsibility as a public employee.

Q: Does it matter that the new IRS examination covers different issues?

A: The opinion says no. It reasoned the answer is the same because avoiding the appearance of impropriety is the crux and the purpose of a tax examination, determining liability, does not change.

Q: What authority did the committee rely on?

A: The opinion cites DR 9-101(B) and EC 9-3 of the former Code, and 18 U.S.C. 207(a).

Background and rules framework

The opinion applied DR 9-101(B) and EC 9-3 of the former Code of Professional Responsibility, which barred a lawyer from later handling a matter for which the lawyer had substantial responsibility as a public employee, and referenced the federal conflict statute, 18 U.S.C. 207(a). That subject matter is now addressed by Rule 4-1.11, governing former and current government officers and employees. The Model Rule analogue is Rule 1.11.

Citations and references

Rules of Professional Conduct:

• EC 9-3; DR 9-101(B) [Code of Professional Responsibility; subject matter now in Rule 4-1.11]

Statutes:

• 18 U.S.C. 207(a)

See also

• FL Bar Ethics Op. 71-14: Government Lawyer Adverse to a Former Private Client
• FL Bar Ethics Op. 72-41: Of-Counsel Imputed Conflict, Former Prosecutor
• FL Bar Ethics Op. 74-27: Lawyer on a Municipal Advisory Board

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-1-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-1
February 19, 1971
Advisory ethics opinions are not binding.
An attorney is precluded from representing a client in tax matters in which the attorney was involved earlier as an employee of the Internal Revenue Service.
CPR: EC 9-3; DR 9-101(B)
Misc.: 18 U.S.C. 207(a)
Chairman Massey stated the opinion of the committee:
The inquiring attorney was employed by the Internal Revenue Service before becoming an attorney and during such employment conducted an examination of a certain taxpayer's returns. The attorney later graduated from law school and is now counsel for the taxpayer. As counsel for the taxpayer, he caused amended returns to be filed which included the years of returns for which he conducted an examination as an IRS agent, which amended returns brought about an increase in tax. The IRS now desires to examine the amended returns on perhaps different matters than those involved in the initial audits, and the inquiry is whether the attorney may with propriety now represent the taxpayer for those same years for which he conducted the examination as an agent of the IRS.
The inquiry must be answered in the negative as CPR DR 9-101(B) precludes a lawyer in private employment handling a matter in which he had substantial responsibility while he was a public employee. See also EC 9-3 in connection herewith and 18 U.S.C. 207(a).
Even though the audit or examination may involve a matter different from that for which the inquirer originally examined the returns, the response would be the same since the avoidance of the appearance of professional impropriety is the crux. Further, one must remember that the purpose of a tax examination is the determination of a taxpayer's liability and although the "matter" or approach may be different in two examinations covering the same period, the ultimate purpose does not vary.