The Florida Bar

February 19, 1971

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)
Cite: 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.

[Revised: 08-24-2011]