Reasoned Decision-Making for Ethics Regulation

Many lawyers and scholars have criticized the ethics rules developed by the organized legal profession to regulate the practice of law. Complaints about processes for generating new ethics rules and ethics opinions interpreting ethics rules commonly reflect concerns about failures to engage in reasoned decision-making. Rationales for the proposed rules or the opinions proffered by bar associations, courts, or agencies are often incomplete or inadequately supported, and one must imagine that the quality of resulting rules or their interpretations often suffers. We argue that administrative law provides a model for how courts can address such concerns—a model that courts, both federal and state, already follow in demanding and encouraging reasoned decision-making by administrative agencies. This Article examines two principal administrative law approaches that courts should adopt. First, even in areas where courts are manifestly inexpert relative to administrative agencies, they have insisted on giving agency rules a “hard look” for confirmation that the agency properly justified the rules at the time of issuance, that the agency issued the rules through a process that gave interested parties a meaningful opportunity to comment and make suggestions, and that the agency properly considered such inputs as well as the whole of the evidence before it. Second, courts have often accorded weight to agency opinions on questions such as statutory interpretation, with the weight accorded dependent on the nature of the agency’s process in generating such an interpretation. In the ethics context, courts can act similarly to promote reasoned decision-making by (1) giving an analog of “hard look” review to rules proffered by bar associations before adopting them and (2) giving bar associations’ ethics opinions only a degree of weight that they merit through high quality process and on-therecord reasoning. By adopting these two approaches to considering the adoption and interpretation of ethics rules, courts can help bring about significant improvements to processes for drafting, adopting, and interpreting ethics rules

Integrating Theory and Practice Into the Professional Responsibility Curriculum at the University of Texas

Teaching ethics to large classes has always proved to be a great challenge for those who teach professional responsibility at the University of Texas. A new program at the University of Texas to improve the professional responsibility curriculum is discussed

The Decline in Tax Adviser Professionalism in American Society

In Part I, this Article briefly examines the debate over the proper role of the tax professional in representing clients. Part II discusses whether tax professionals owe special duties to the tax system. Part III analyzes how the tax professionals’ involvement in several waves of tax shelter abuses is in sharp contrast to the high-minded rhetoric of the tax ethics debate. This part also discusses changes in the legal and accounting professions that have contributed to the current state of taxpayer representation. This Article advocates for the position that tax professionals owe a duty to the tax system and such a duty must be grounded in concrete guidance. Part IV proposes several changes that would delineate more clearly the tax professionals’ duty to the system while preserving the professionals’ duty and right to vigorously represent their clients within the bounds of the law. We believe that the Circular 230 standards of practice, the preparer tax penalty provisions in section 6694 of the Code, and the taxpayer substantial understatement penalty provisions in section 6662 should be harmonized to require that the advice of tax professionals to taxpayers with respect to tax return positions meet the “more likely than not” standard, except, in the case of non-tax shelter transactions, when the taxpayer discloses the position on the return. Disclosed positions should be required to meet an enhanced “reasonable basis” standard