Making a List and Checking It Twice: Must Tax Attorneys Divulge Who's Naughty and Nice?


This article analyzes the ability of tax attorneys to shield a client’s identity from disclosure to the Internal Revenue Service under the attorney-client privilege. The article concludes that, on policy grounds, the attorney-client privilege should be limited in the context of tax planning. Consequently, client identity should not be privileged irrespective of whether a tax shelter is involved. The article also concludes that the privilege would not be available under the current judicial approach to client identity questions. As a result, recent regulations requiring tax attorneys to maintain lists of clients engaging in specified tax motivated transactions represent an appropriate response to recent tax shelter activity.


Legal Ethics and Professional Responsibility | Legal Profession | Taxation-Federal

Date of this Version

March 2004