Eyes Wide Shut: Surveying Erosion in the Professionalism of the Tax Bar
26 Pages Posted: 27 Oct 2003
There is a generalized feeling among lawyers today that the legal "profession" is eroding into the legal "business." However, the lack of hard evidence of change has made it easy to dismiss this feeling as no more than nostalgia for a non-existent "golden age" of professionalism. Nevertheless, erosion of any sort is a slow-moving, gradual process, and its visible effects only become noticeable as they accumulate with the passage of time. The effects of what appears to be a true erosion in the professionalism of the tax bar have recently begun to accumulate, providing evidence that the generalized impression of a decline may actually be grounded in reality.
The evidence of this decline in professionalism takes the form of a growing number of articles in lay publications (e.g., The New York Times and Forbes magazine) that provide the general public with technical discussions of legal, but ethically questionable, tax avoidance techniques. The essay focuses on two groups of such articles that have appeared in The New York Times during 2002. The essay first provides a description of the tax avoidance techniques discussed in the articles and of how public attention effectively shut those techniques down. Next, as a prelude to discussing the impact of these events on the law as a profession, the meaning of the term "profession" is explored. It is contended that, when used to refer to the practice of law, the term "profession" is used in its sociological sense and describes an occupation whose members (i) have mastered an esoteric body of knowledge, (ii) are altruistic, and (iii) are self-regulating. Then, with this definition in mind, the events surrounding the apparent demise of each of these tax avoidance techniques are analyzed. Based on this analysis, it is concluded that these events undermine the rationale for granting the legal profession the right of self-regulation. By contributing to the erosion of the legal profession's claim to one of the defining characteristics of a "profession" these events necessarily contribute to the erosion of the legal profession's more fundamental claim to the benefits and privileges of professional status.
The purpose of the essay is to document and draw attention to this evidence, as its implications for the profession seem to have been overlooked by commentators. It is hoped that, by drawing attention to this evidence, the essay will spur members of the tax bar to reflect seriously on (i) their own actions and how they may have contributed to the erosion in professionalism and (ii) more broadly, whether the standard of conduct to which they actively hold themselves and their peers is sufficiently rigorous.
Keywords: law, ethics, taxation, professionalism
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