The conscience of a lawyer and “The FBAR Fundraiser”

Cross posted from RenounceUScitizenship.

Having a license to practise law (bar admission) does not a lawyer make.

Admission to the Bar, gives an individual the legal right to conduct oneself as  a lawyer. A lawyer operates within a specific construct of ethics and morality. The American Bar Association Model Rules of Professional Conduct make it clear that

A lawyer has an obligation to the client that is more important than loyalty to any other person or entity. This principle is made clear in Rule 1.7 of  The American Bar Association Model Rules of Professional Conduct.  Rule 1.7 clarifies that a lawyer should not act for a client if there exists any conflict of interest. It reads as follows:

Client-Lawyer Relationship
Rule 1.7 Conflict Of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

As I argued in a previous post, this must means that a lawyer’s fiduciary obligation to the client must  take precedence over (subject to a duty to tell the truth) any other obligations,  including Circular 230 obligations.

This principle of primary obligation to the client,  has run through the common law, for hundreds of years. It explains the role of a lawyer in unpopular cases. The principle also explains the role of a defense lawyer in a criminal case. On a more general level it explains the role of a lawyer in any case – including cases involving the government.

Many people are familiar with Atticus Finch – the defense lawyer in the book “To Kill A MockingBird”. In this story Atticus takes on an extremely unpopular case. He zealously and competently represents his client against the government. The story of Atticus Finch has motivated many people to become lawyers.

Good lawyers can be found in many different places and capacities – including in this blog of a Military Defense Lawyer. In explaining the duty of a lawyer to his client, the author quotes Lord Brougham in Queen Caroline’s case. Lord Brougham’s description of the duty of the client as follows:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.

The Road To Hell Is Paved With Good Intentions

At the beginning, the creation and initial administration of the 2009 OVDP may have been motivated solely by efforts to:

– work with “tax cheats” (exempting Secretary Geithner), who were residents of the U.S.

– who were using offshore bank accounts to evade U.S. taxes

By 2011 OVDP had morphed into OVDI and it was clear that the purpose of OVDI was to extract money from anyone with an offshore bank account who had not filed an FBAR. By anyone, I mean even people who did not know and had no reason to believe that they were even U.S. citizens!

Even those who did not know they were U.S.citizens were required to pay 5% of their net worth to the IRS. As described by Just Me:

What is obvious to me now, is that going back to when the 2009 OVDP was designed, it was intended for the egregious homeland Whale. It was conceived as “easy money” that could be generated off the UBS client lists about to be exposed, without having to go through lengthy DOJ criminal prosecutions. It then evolved over time to create technical adjustments with lesser penalties for more benign non compliance, as they realized their nets were filling up with Minnows for which the program was never intended. They started to lower the penalty levels and threshold amounts for certain financial conditions, going all the way down to the most “innocent of innocent”, the non resident accidental American who didn’t even know they were American!

Under the program, should this poor non resident fool join the OVDI, they would “only” have to pay a 5% penalty of their entire “offshore” assets for the privilege of now being compliant to an obligation they did not know, could not have known, was required! Say what? Read that again.

FAQ 52.2 states: Taxpayers who are foreign residents and who were unaware they were U.S. citizens,…. is entitled to the reduced 5% offshore penalty.

Why would the IRS insist that a person like this have to join the OVDI process in the first place, and then grant them an “entitlement” of a reduced 5% penalty for a condition by their own definitions has a “reasonable cause” exception to any penalties outside the OVDI program using IRM discretion? For this they are supposed to be thankful and forever grateful for the benevolence of the IRS and the leniency of the 5% OVDI penalty entitlement? Geez, lucky them!

The U.S. government, through the leadership of the IRS, has become an organization that is running a massive, institutionalized, immoral  “shake down”. As we know, OVDI was a fantastic deal for criminals (imagine being able to repatriate your illegal earnings for 25% and avoid incarceration – Thank you Mr. Shulman!). So, Mr. Shulman designed a fantastic deal for criminals. The deal was not  good for those who were not criminals.

The reality is that most people who entered OVDI were NOT criminals. They were innocent people who did not know about FBARs, complicated U.S. tax anti-deferral rules, PFICs, etc. Furthermore, many of them did not know they were required to file tax returns. Who could even suspect the existence of something like an FBAR? (The Obama administration appears to operate on the assumption that U.S. citizens abroad are tax cheats.) But, of course, “Form Nation” never conceived of  a form it didn’t like.

The “non-criminals” affected by OVDI were necessarily:

– people who were railroaded into the program by lawyers who did NOT advise clients of all their compliance options;

– people who participated because they believed that the law (no matter how immoral) should be their guiding principle;

– people who had spent their lives saving for retirement and therefore had assets to be stolen from them by the IRS

Notice that the people who were not affected by OVDI are:

– people who are not motivated to follow the law;

– people who had never bothered to save for retirement through the acquisition of retirement funds and assets

In other words, OVDI punished the people least deserving of punishment.

Since most of  the “non-criminals” (U.S. citizens living abroad and U.S. immigrants) owed little tax, the IRS weapon of choice became Mr. FBAR. In fact, let’s call OVDI what it really is:

The FBAR Fundraiser

If one accepts that government morality, includes  basic precepts of “fairness” and “justice”, then many would conclude that “The FBAR Fundraiser” is immorality in the extreme. With the “FBAR Fundraiser” the U.S. government made itself eligible  to join the club of  the most immoral regimes in the history of the modern world. Senator Schumer’s Ex -Patriot Act, has guaranteed  U.S. acceptance into that club. As Roger Conklin said:

“The old gray mare just ain’t what she used to be”.

As Thomas Paine noted, in the first of a series of pamphlets published from 1776 – 1783, during the American Revolution:

These are times that try men’s souls“!

Many U.S. citizens abroad  are grappling with how to come into tax compliance. A topic of recent discussion is the issue of OVDI vs. a quiet disclosure. Since, people get their advice from lawyers, the issue then evolved into the ethical obligations of a lawyer in relation to recommending OVDI. I believe that lawyers have an ethical duty to recommend all compliance options. The reality is that any compliance option has the potential to subject a client to “The FBAR Fundraiser”. For those who enter  OVDI  the “in lieu of other penalties” proxy is “The FBAR Fundraiser”.

What is to be done if the IRS decides to assess FBAR penalties? I.e. make good on the purpose of “The FBAR Fundraiser”. What should the lawyer recommend? Should the client fight or pay? Obviously it depends on the circumstances (although I do think that there is a matter of great principle here). The “pay or fight” issue has now emerged in the discussion thread.  Of course this is possible only with the assistance of a lawyer committed to the cause. Mr. FBAR is a particularly nasty piece of work. Mr. FBAR is also vulnerable to challenge on a number of constitutional grounds. This point was recently made as follows:

Petros

http://isaacbrocksociety.com/2012/05/26/why-is-the-quiet-disclosure-qd-so-controversial-between-practitioners/#comment-21073

On historical grounds, the FBAR law, FATCA, 8938, extra-territorial taxation etc. violate the 4th, 5th, 6th (if ever goes to trial), 8th and 9th amendment rights. They also violate the Declaration of Universal Human Rights. The arguments for this, just getting started, are on the side bar. No one, absolutely no one, has said that these arguments are WRONG. Some have said, however, just say that there is no chance of winning in court unless you have millions to spare on a court challenge.

Consider that extra-territorial taxation without representation was at the heart of the abuses which caused the American colonies to revolt against the King, and then you get an idea of how angry the expat community is over these issues. We have no representation, and our wealth is being systematically attacked by the IRS. Many of us, including myself, have given up our birthright to live in the United States just to escape the clutches of the evil monster, the IRS (sorry Steven, the IRS is an evil monster keeping poor expats awake at night in fear and trepidation). This is Hope and Change, Obama’s America. But the Republicans offer us no hope either. Boehner’s support of the Ex Patriot Act is shameful. He is a disgrace.

A challenge to Mr. FBAR is possible only when both the targets of “The FBAR Fundraiser” (anybody with money the IRS can take) and the lawyers are willing to accept the challenge.

I leave you with the following thoughts of Todundsteur:

http://isaacbrocksociety.com/2012/05/26/why-is-the-quiet-disclosure-qd-so-controversial-between-practitioners/#comment-21060

todundsteuer

@Michael

Are you, Steven or any other practitioner of your acquaintance aware of any case now pending in any US court where the Justice Department is seeking to enforce a civil fine for a FBAR violation?

Are you aware of any such past case that has ever been tried to a verdict?

Were such a case to be filed would the DoJ be bound by a “quantum” previously proposed and challenged administratively or would the court be free to assess a civil fine in its own discretion.

Since both the constitutional validity of the law as well as the quantum of punishment will depend on the gravamen of the offense in relationship to the punishment sought would this not open the door to wide-ranging civil discovery requests directed against the plaintiff by the defendant concerning the past, present and future law enforcement and/or regulatory utility (or futility) of the FBAR itself?

Would such discovery possibilities not also be available to a defendant faced with a criminal FBAR charge?

If after nearly 8 years of the enhanced FBAR penalty regime and nearly 3 years of OVDI no such civil case has ever been filed, one is compelled to ask:

Why?

Why has no practitioner yet advised or encouraged their client to “call” the government by refusing to pay any FBAR fine or refuse to plea bargain (at least until after discovery is completed) thus daring Schulman & Co. to bring such a civil enforcement action?

Forget Steven Mopsick’s offer of pro bono assistance to anyone faced with a 300% FBAR penalty. I am ready to offer my assistance pro bono to anyone faced with a FBAR collection suit for ANY amount who is prepared to get it on with the DoJ.

It is time to bring this shameful FBAR farce to an end and either expose the naked venality and lawlessness of Shulman’s revenue enhancement through extortion policy for what it is or go down fighting.

Renounce?

I have not yet begun to fight.

Food for thought: Given the fact that U.S. citizenship has been priced out of the market, it’s not wonder that renunciations of U.S. citizenship are soaring under Obama!

Advertisements

7 thoughts on “The conscience of a lawyer and “The FBAR Fundraiser”

  1. Very nice post!

    If a lawyer discourages his clients from considering one or more legal options, because the lawyer wishes to avoid some remote (or nonexistent) risk of a circular 230 violation, I’m extremely curious to hear how this might be reconciled with the lawyers ethical obligation to properly represent his client. Extremely curious, indeed.

  2. @Michael,
    Do you believe many lawyers are actually facing this dilemma and are advising OVDI because of the IRS’ message and the fear of a circular 230 violation?
    If so, would there be an IRS Tax Lawyers association that would be willing to report them issue, as it seems the IRS’ message creates some conflicts of interest.

  3. @Renounce …. very well written and thought out post. You put a lot of time into these well constructed posts, and I for one, really appreciate them. Prior to this I would have never know a Circular 230 existed, or what it is purpose was. Nor would I have ever looked up the American Bar Association Model Rules of Professional Conduct. It is a world I would never inhabit or have had an interest in until a fateful day in 2009. Thanks for contrasting Rules of conduct with Circular 230 obligations. It does seem like some attorneys have some real soul searching to do with the question of who do they represent and what kind of law they are going to practice.

  4. @Christophe,

    My impression is that very few lawyers are facing this issue, because it’s my impression that very few lawyers share the view that there is any Circular 230 / ethical problem with quiet disclosures in the first place.

  5. Postscript:

    I think that some tax lawyers may have a slightly different concern. I can envision that, even in the absence of a perceived Circular 230 problem, a tax lawyer may be concerned about his own reputation.

    He may, for example, feel that if he assists clients in taking a “back door” or “sneaky” though perfectly legal approach, his own reputation could suffer …. that he could be known as the kind of lawyer who tries to “trick” the IRS.

    Of course, I’d say that for any tax lawyer who has such a concern, the proper remedy is to choose not to represent taxpayers with FBAR-type issues. But once you choose to represent such taxpayers, you have to put their interests first. Providing a client with representation that enhances or maintains the lawyer’s reputation at the expense of the client’s best interests is not a permissible option.

  6. @Michael J. Miller, thank you for your contributions. I’ve appreciated reading the comments you’ve made, (and the interchange with Stephen Mopsick and others). We laypersons have no idea about all of this – including the existence, and influences of circular 230. We fear dealing with the unfathomable complexities and vast resources of the IRS without representation, and also fear losing the only savings we have to fees as well. That is if we even have the savings. Either can wipe us and our family out entirely – and lead us into a huge debt, even where no US tax was owed, and did not know about the various forms. The outcome either way is ‘life-altering’ (a term I think you’ve used). We are entirely out of our depths with this – no matter how we have tried to self-educate (thank you Just Me and others). There are too many nuances, and too much detail to master. The outcome with legal/accounting fees and penalties, can doom the whole family – not just an individual deemed US taxable ‘person’.

  7. @Badger, I understand completely. I have heard the new voluntary disclosure program may (not “will,” but “may”) have some additional rules allowing more lenient treatment for citizens living outside the US. Whether the new rules (if they come at all) will represent something expats can live with, or just more of the same crap, remains to be seen.

Comments are closed.