Professional Ethics for the Tax Lawyer to the Holmesian Bad Man

37 Pages Posted: 7 Aug 2016

Date Written: August 2, 2016


The “manufacture” of factual indeterminacy in furtherance of tax avoidance activity constitutes potentially unethical attorney conduct. The structuring of facts toward tax avoidance is not merely the rendering of legal advice as contemplated by the Model Code of Professional Conduct, and instead may assist the Holmesian “bad man” client toward conduct which is normatively prohibited under the tax laws. As such, only tax planning via factual structuring, which results in determinative tax avoidance, is ethical attorney conduct. Since a purely formalistic method of legal interpretation is not applied in the United States, the circumstance of determinative tax avoidance is extraordinarily rare in the modern era. The moral aspects of legal representation in furtherance of tax evasion are also re-evaluated from both the parochial and postmodern perspectives.

Keywords: Oliver Wendell Holmes; bad man; formalism; economic substance; Romans 13:7

JEL Classification: K43

Suggested Citation

Bogenschneider, Bret, Professional Ethics for the Tax Lawyer to the Holmesian Bad Man (August 2, 2016). Creighton Law Review, Vol. 49, p. 775, 2016. Available at SSRN:

Bret Bogenschneider (Contact Author)

University of Surrey - School of Law ( email )

United Kingdom

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