Chapter 15 Introducing tax advocacy to students
Sarah Lora and Christine Speidel*
15.1 Key findings
Using examples from clinics at law schools in the United States, this chapter describes the training and professional development provided to students by the tax controversy clinic model (as initially discussed in Chapter 3). Students not only gain skills and direct advocacy experience but they also learn habits of reflective, thoughtful practice which will allow them to succeed in any professional context. Working with low-income community members helps students to connect, understand and empathise with their clients while instilling public service values that will stay with them long after they have graduated.
15.2 Introduction
Ms. M– worked in a grocery store making minimum wage. She was the sole breadwinner for her family of four but had never filed a tax return. The Internal Revenue Service sent her Statutory Notices of Deficiency for four years asserting that she owed several thousands of dollars based on income reported by her employer. Students assessed the case and advised the client to contest the notices in the U.S. Tax Court. Students prepared and filed a Tax Court petition arguing that Ms. M– did not owe any money but was instead owed refunds, as she was eligible for anti-poverty credits for her family. The students’ advocacy was a success, resulting in refunds to the client of over $16,000. The taxpayer was shocked and very appreciative of the clinic’s help. In addition to helping her resolve her tax issue, the students educated Ms. M– about tax administration and the tax law, including how to have future tax returns prepared and filed for free, and the availability of anti-poverty tax benefits designed to help people just like her.1
In academic tax clinics, students take on the role of practising lawyers while they are still in a supportive, supervised learning environment. Through representing clients in real cases, students learn and practice the foundational lawyering skills they will need after graduation. This role assumption forms the core of clinical legal education.2 However, teaching skills to students is not the only purpose of clinics.3 Tax clinics, like other law clinics in the United States, have both internal and external missions: to educate students on the one hand, and to achieve justice for low-income taxpayers on the other, through representation, education and systemic advocacy.4
How can a student with no tax background or law practice experience be expected to effectively represent a taxpayer before the IRS or the US Tax Court? The learning curve is admittedly steep, both in terms of tax law and procedure, and often in terms of understanding the complexity of the lives of LITC clients.5 However, role assumption in tax clinics is possible, effected in two main ways. First, through close case supervision that supports self-reflection and iterative growth. Second, through a classroom component incorporating readings, written assignments and simulation exercises. Supported by effective supervision and classroom teaching, students successfully work with and support individuals and communities who face barriers to accessing tax justice.6
Students looking back on their time in the clinic generally appreciate the experience. One Villanova graduate commented:
Working in the Tax Clinic was one the best experiences I had in law school. The Clinic gave me an opportunity to get the full experience of working as a lawyer. In other externships, I was limited to performing very specific roles and I never had an opportunity to interact with clients. In the Clinic, I was allowed to not only interact with my clients, but take the lead on planning their cases. This client-focused work made my experience in the Tax Clinic an invaluable part of my legal education.7
Using examples from clinics at law schools in the United States,8 this chapter describes the training and professional development provided to students by the tax controversy clinic model. First, we examine the design and operation of academic tax clinics, highlighting important pedagogical and structural decision points. We then describe different aspects of the course, giving examples of how one might approach the teaching of both broad professional competencies and the specific lawyering skills required for tax advocacy.
15.3 The structure of a clinic course
Clinical education is designed to train future lawyers by permitting students to assume the role of practising attorneys under close and careful supervision.9 Law schools in the United States are accredited by the American Bar Association (ABA), which has adopted standards and rules of procedures for the approval of law schools.10 The standards include a requirement that approved law schools require six credit hours of experiential learning that includes a classroom component.11
The seminar component
The classroom component provides a space for students to synthesise practice experience with broader legal concepts in a way that is relevant for all practice areas. Ideally, it provides ample opportunity for a rich experience incorporating professional conduct and ethics, legal skills such as client interviewing, building trust with clients, coworkers and the broader legal community across differences, fact development and analysis, legal research and writing, tax concepts frequently seen in client cases, and tax policy as it relates to low-income taxpayers.
Many textbooks offer readings, exercises and ideas for the clinic seminar.12 One textbook exists that is written specifically for LITCs. Authored by former clinic director and current US Tax Court Special Trial Judge Diana Leyden, the book incorporates tax-specific discussions of professional responsibility, interviewing and counselling, and serves as a tax law and procedure reference manual.13
The client representation component
Student responsibility for representing real clients in real cases is, of course, the distinguishing feature of clinical education. Clinics operate law firms staffed by student associates, except with a not-for-profit mission. Pedagogical and structural choices in designing the client representation component of a clinic are discussed in more detail in the next section.
Because we integrate teaching across the case work and seminar components of the course, we discuss them together for the remainder of the chapter.
15.4 Major design choices within the clinic model
This section explores some of the ways in which our ‘non-profit law firm’ (our tax clinic) could be structured as we introduce students to tax practice.
As a preliminary note, clinics differ in their approach to dividing students’ time between the classroom component and the case work component of a clinic course. Some schools formally separate the case work and seminar components, awarding different types of credits and potentially separate grades for each component.14 At Villanova and Lewis & Clark, a single grade is given for both components, and the academic credits for case and classroom work are not formally separated on a student’s transcript.15 However, in those clinics, casework is integrated into the classroom discussion, and as the semester progresses the seminar begins to resemble a law firm practice unit meeting, where case issues are presented and discussed among members of the firm. The issues discussed in this part of the chapter impact how one teaches the classroom component as well as how one approaches case work.
The directive–nondirective continuum
In designing a clinic course, perhaps the most important decision is how to approach student learning along the continuum from directive to nondirective teaching. One prominent strain of clinical pedagogy in the United States emphasises ‘nondirective’ teaching and supervision,16 wherein the student is expected to take on primary responsibility for their cases. This includes learning the applicable law and procedure, justifying and critically examining each lawyering choice that they make, being nudged or guided to gaining knowledge and achieving insights on their own, and being given as much case responsibility and autonomy as possible.17 In the clinic seminar, this approach means less time spent on lectures and an emphasis on student participation and engagement, perhaps tending towards the Socratic method. Other clinics adopt a more traditionally ‘directive’ approach, supervising students as one would a law clerk or summer associate, lecturing on tax law and procedure, and providing similar resources as one might find in private practice. Both models give student attorneys more responsibility than they would have as summer associates or new attorneys in a large firm. We will explore how these approaches can play out in different areas of clinic practice.
Level of student responsibility for cases
All clinics offer students first-hand practice experience, in a way that is not available to law students working in the private sector.18 However, the student’s level of responsibility for a case can vary by clinic. In some clinics, it may also vary depending on the experience and skill level of the student. This can be seen in several aspects of the law practice.
• Who does the client interact with over the course of their case? (The student and the instructor, or only the student?)
• Who performs the initial in-depth client interview? (The student and the instructor together, or only the student? If the latter, does the instructor sit in on the interview?)
• How is case strategy decided?
• How are the next steps in a case determined?
Consider Margaret, a disabled low-income individual who came to the clinic because she received an IRS bill for not reporting income from a lawsuit settlement related to alleged discrimination in the workplace. Margaret did not report the income on her return because she believed that type of income was not taxable. The clinic student researched the issue and unfortunately concluded that the liability is correct: the settlement is taxable. The student asks their supervisor, ‘What should I do next?’
A directive supervisor might inform the student that the next step in the case is to perform a financial analysis and get Margaret’s debt into Currently Not Collectible (CNC) status if possible.19 The supervisor might further tell the student to fill out IRS Form 433-F to see if Margaret qualifies for CNC. The student would work with the client to gather the necessary information, and might do some legal and factual investigation for the CNC claim before checking back with the supervisor to review the draft Form 433-F. If Margaret qualifies, the student will advocate with the IRS to obtain CNC status.
A nondirective supervisor might instead respond to the student with a question, ‘What do you think we should do next?’ or ‘Is there anything else we could do to help Margaret?’, ultimately guiding the student to realise that they should next determine the client’s collection options and then help her decide which option to pursue (if any). Hopefully this will be a quick conversation, as the student will recall the basic collection options from clinic orientation and from clinic seminar readings. If the student does not, the supervisor might direct the student to review certain materials (such as the basic tax collection materials from orientation, the collection chapter of a practice treatise, or a specific seminar reading), and then come back to discuss next steps in Margaret’s case. The supervisor would likely not identify CNC as the next step or Form 433-F as the required form but would instead ask the student to research the options and propose next steps for the case. Sooner or later the student would get to the same place as the student in our directive example above.
Both students in this scenario gain the practical experience of helping a client complete Form 433-F, analysing the client’s eligibility for CNC, and helping the client obtain protection from enforced collection. The student in the nondirective clinic will also practise recalling and applying information from class sessions to their cases (the other student will do this also, to a lesser extent), and will practise thinking broadly about options for next steps when one phase of a case has concluded. On the other hand, the client in the directive clinic may obtain relief more quickly allowing more taxpayers to be served.
One benefit of the nondirective approach is that the supervisor’s hunch about next steps is not always right. Often there is no single ‘right answer’. Recalling the previous example, if Margaret has little income and assets, she may qualify for an Offer In Compromise (OIC) that would eliminate the tax debt completely. This result would be superior to a collection hold. If the professor suggests CNC, the student may not consider an OIC, resulting in an inferior outcome for the client.
One Villanova student put it this way: ‘At the firm I worked at last summer, I was told, “this is the argument we’re making, go draft the brief”. But in the clinic, you’re asking us to figure out what arguments we should make in the brief, and then draft them. It’s a lot more responsibility’.20
Use of examples and templates
Clinics towards the nondirective end of the spectrum minimise students’ access to templates and samples of prior work. Instead, students are guided to think through each step in their case work, and creatively craft their work product within the bounds of the law, the applicable rules and their client’s goals. This prevents students from blindly following what has come before without stopping to think it through or customise it for their case. In order for students to draft case work products without the benefit of templates, nondirective clinics provide training in basic tax law and procedure, and they provide resources such as treatises and legal research databases.
Clinics that practise more directive supervision freely provide students with work product examples, templates and sometimes checklists or outlines of workflow. In addition, some clinics provide students with legal analysis shortcut tools.21
Our clinics’ treatment of case planning is a good example of our different approaches to templates. At Villanova, students read about various case planning methods as a pre-class assignment.22 These are then discussed in class, and the group reviews sample legal elements proof charts from a non-tax case.23 Next, as an in-class small group assignment the students populate a proof chart for a mock client with a qualifying child dispute. They are given the legal elements and must fill in corresponding factual prepositions and potential sources of evidence based on the provided case file.24 The answers are reviewed as a large group at the end of the class.
The next week, students create and populate a legal elements proof chart for one of their actual cases and turn it in as one of their written assignments. This assignment requires students to determine the applicable legal elements on their own, as well as the corresponding factual propositions and sources of evidence. The students receive feedback on their case plans, and two weeks later must submit a revised chart. At Villanova, student-created case plans are removed from the files at the end of each semester, so they are not available to the next group of students.
Similarly, the tax clinic at Lewis & Clark relies on proof charts and discusses them at length in the seminar.25 Professor Lora invites an employment law lawyer to discuss how her proof charts are based on jury instructions and are the basis for all her case planning, including at the initial interview stage. While most US tax litigation is not in front of a jury, proof charts are still an essential case planning tool. Professor Lora provides students with proof charts containing the required legal elements applicable to their cases and encourages students to use them to guide their fact and legal investigations. Proof chart templates for common types of cases, such as qualifying child, innocent spouse and worker classification, are made available to students with citations to code sections listed. Students focus their energies on figuring out what is and how to obtain the appropriate piece of evidence, such as a school record or a witness statement. The work product is meant to be a constantly evolving document as facts and evidence are uncovered and, therefore, it is kept in the file and used by other students in subsequent semesters.
Nondirective clinics may find the directive approach to come at the expense of deeper student learning, but more directive clinics find that using templates, checklists, and proof charts more accurately reflects the practice of law after graduation and allows the clinic to move cases forward more quickly thereby providing a greater service to the community.
Case supervision
Nondirective clinics may emphasise student ownership over cases more than a directive clinic, with the supervising attorney as a sounding board and a backstop. Nondirective supervisors use techniques such as parallel universe thinking,26 modelling, and questioning designed to help the student arrive at alternative approaches or brainstorm solutions.27 The student is required to actively think through their options and justify their lawyering decisions at each step of a case. In a nondirective clinic, the student quickly learns that the supervisor will never directly answer the question, ‘what should I do’?
Supervisors falling on the more directive end of the spectrum may answer that question and may even provide unprompted advice about what steps to take next in each case and how to go about it. Some supervisors may also be willing to answer legal or procedural questions that the student could easily look up.
There are many supervisors whose default approach falls somewhere in the middle of these two extremes. Also, experienced nondirective supervisors will vary their approach depending on the situation and the supervisor’s goal for the encounter with the student.28 Supervisors may also vary their approaches depending on the skill level of the student. Students who struggle to learn the material or who struggle to apply the material to their cases may merit more directive supervision. Another approach, used in the Lewis & Clark tax clinic, is to direct first-semester clinic students more closely, and gradually become less directive as the students gain knowledge and experience.29
One discrete aspect of supervision to consider is the supervisor’s contact with the clients of the clinic. In some clinics, the supervising attorney rarely (or never) meets or speaks with the clinic’s clients. Students handle all client interactions, with minimal exceptions. For example, at Villanova a paralegal screens initial intake callers for basic eligibility, and then students take over all client communications until the case is closed.30 In other clinics, the supervising attorney is present at the client interview (or at least a student’s first client interview) and the attorney may conduct the interview themselves, modelling for the student. As the student gains experience, they may conduct interviews with their supervisor present, and finally ‘graduate’ to conducting client interviews and meetings alone.31 Even at the most directive end of the spectrum, to our knowledge all United States law clinics give students the opportunity for direct client contact.
Tension between client service and student educational development
Students in directive clinics undoubtedly make faster progress on cases. As demand for free legal services always outstrips supply, service providers often feel pressure to help as many people as possible. There may also be pressure from funders to maximise case numbers. Another positive aspect of more directive clinics is that the use of templates, checklists, and AI tools better mimics what students will encounter in the ‘real world’ of a law firm. However, advocates of nondirective teaching believe that students do not learn as much in a directive environment, even though they achieve competency faster at the specific tasks to which they are assigned. They may point out that students frequently use templates without fully understanding them, and don’t necessarily develop the same level of general lawyering skills or thoughtful, reflective practice as a student who has had to find their way up the steeper learning curve of nondirective supervision. Ideally, a student who has had to research the law and procedure on their own and develop their own options and analysis will be undaunted by the novel legal issues and challenges they will confront in the practice of law. Each clinic must find a way to resolve this tension.
15.5 Developing a reflective practice
In clinics, students gain not only specific lawyering skills, but also general habits and perspectives that will serve them well professionally in any field. One broad goal of clinical education is to help students become reflective, thoughtful advocates, primed to engage in continual professional development throughout their career. We teach students both short-term and longer-term habits and techniques to achieve this goal.
Exercising agency over one’s professional development
Before the course begins, students may be asked to reflect on their goals for the semester. At Villanova’s clinic orientation students work through a written exercise in which they reflect on twenty-six factors influencing lawyer efficacy and then set their professional development goals for the semester.32 About seven weeks into the semester, the students complete a written self-assessment. This includes reflection on their skills inventory and progress towards their goals for the semester, in addition to reflections on their performance on core clinic activities such as client interviewing and counselling. Students are nudged to take responsibility for accelerating their learning. For example, one question asks, ‘how have you experimented (or how might you use the remainder of the semester to experiment) with new techniques to achieve your goals?’ Students meet with their professor to discuss the self-assessment around week eight. A final exit interview around week fourteen provides a final check-in on the student’s goals and individual feedback on next steps for the student’s professional development.
Building the habit of reflection
A common mantra among Villanova clinical professors is Plan, Act, Reflect.33 Students are taught to approach their case challenges first by researching, planning and considering options, next by diving in, putting their plan into action, and finally by reflecting back on the process and its results.34 Asking students to explain and justify their lawyering choices at each step of a case helps build the necessary muscles for reflective practice.
In our experience, students are very comfortable with the first step, and some would stay in ‘phase one’ researching and planning for half the semester if they could. Students usually require nudging to dive in and take action when it is uncomfortable, before they gain confidence as advocates. Diving into practice is crucial to gaining the most from a clinical experience. But it is not enough to stop there. Repeated emphasis on the final reflective step is crucial to students becoming excellent advocates, both during their time in clinic and beyond.
To build the habit of reflection, clinics may assign written reflection papers or journaling (in some clinics as often as weekly), while other clinics prompt regular reflection less formally, in case supervision meetings and in occasional self-evaluation assignments.35 By either method we prompt students to reflect on each action they take for clients and to think creatively about what worked well and what could be improved, to build on their mistakes and their successes. We apply this habit of reflection to all facets of advocacy: for instance, to forming a strong attorney–client relationship; to interviewing; to interactions with the IRS and opposing counsel; and to written communications.
The Plan, Act, Reflect mantra instils reflection as a practice habit, constantly asking the students to reflect on their activities. This habit, combined with student ownership over their longer-term professional development, provides a powerful foundation for future growth.
15.6 Skills and direct advocacy experience
The many skills and competencies required for excellent lawyering have been catalogued in various ways. In this part of the chapter, we selected examples of several narrower skills and competencies that we aim to teach through our clinic courses.
Law firm management
Much of the initial days of orientation are spent on teaching the nuts and bolts of how the clinic operates. We suggest using a case management software that tracks clients, matters and timekeeping and provides training for the students on how to use it effectively. The firm should have timesheet drafting guidelines and policies in place for dress code, office protocols (especially for the prevention of the spread of COVID-19). The orientation should spend time discussing any internal communication tools,36 as well as protocols for external communications through emails, letters, faxes and phone calls. The clinic director should discuss calendaring to ensure all case deadlines are met and appointments can be scheduled. Additional instruction should be given on document management, as well as preferred software for word processing and manipulating PDFs.
Ethics
The importance of teaching professional responsibility cannot be understated for the sake of the profession, our clients and our students. The ABA requires that students take a two-credit course ‘in professional responsibility that includes substantial instruction in rules of professional conduct, and the values and responsibilities of the legal profession and its members’37 and that clinical offerings ‘integrate doctrine, theory, skills, and legal ethics’.38 The classroom component of the LITC course provides students opportunities to apply their professional responsibility classroom course to the practice of law.
From the beginning of the course, students are confronted with the reality that they will actually be practising law and that students must constantly check themselves to ensure they are following the rules of professional conduct for the state.39 Consider sending an email to students requiring that the student review the rules of professional conduct regarding client confidences and sign an agreement that the student will protect client confidences in accordance with the rules. Without this document, students should not be given access to the clinic email, logins, door codes, and so on. Also consider inviting malpractice insurance personnel to give a presentation covering topics such as the role of malpractice insurance, the rules of professional conduct, and common ethics scenarios for practising attorneys.40 The idea is to encourage students to develop their sixth sense about professional conduct and to understand that the malpractice insurance provider can be a friendly resource for feedback on issues that arise.
Many clinics have their students work in teams of two to four, and most clinics require weekly supervision meetings to review case progress. This time can also be used to flesh out ethical issues that arise as the case develops. Some common issues include conflicts of interest between spouses, maintaining confidentiality, the unlicensed practice of law, and competence.
Multicultural lawyering
To effectively advocate for clients, students must first understand the motivations and decision-making process of their clients. Without understanding the basics of multicultural lawyering, understanding a client and their case becomes more difficult if not impossible. A popular and instructive piece to teach multicultural lawyering is called ‘Five Habits for Cross-Cultural Lawyering’.41 Professor Lora assigns this article prior to her seminar on the topic.42
The first habit encourages practitioners to consider the similarities and differences between them and their clients to help the practitioner to understand the ways in which those similarities and differences influence the practitioner’s ability to relate to their client and gather facts. The second habit instructs practitioners to consider how the law might view the client, the lawyer and the client’s case. This habit helps practitioners see their client’s case through the lens of the legal system and prepare the case in a way that addresses any issues raised by the client’s cultural background. The third habit helps practitioners to become less judgemental and more open to viewing client decisions and actions in different ways to give them more context and meaning. This in turn helps the practitioner to advocate effectively for the client. The fourth habit builds tools for cross-cultural communication to prevent meaning from getting lost or distorted. Finally, the fifth habit instructs practitioners to reflect upon their practice and encourage them to improve their cross-cultural competencies in the future while preventing self-judgement.
Legal skills
Tax cases provide the opportunity to develop many lawyering skills and competencies. Nearly all cases require the student to gain facility in client interviewing, fact investigation, legal research, case planning and development, client counselling and communication, oral and written advocacy, forming effective professional relationships, ethics and professional responsibilities, and law practice management.
While tax cases, like most cases, most often settle rather than going to trial, in some instances students also have the opportunity to practise trial advocacy skills. The US Tax Court’s calendar call programme allows participating clinics to advise self-represented taxpayers on the eve of trial. Occasionally, it may be appropriate for a clinic to jump into representation.
Clinic students are taught skills through a variety of methods. The seminar component of the course incorporates readings, lecture, in-class discussions and exercises, simulations, and written assignments. Later in the semester, many clinics incorporate case discussions into the seminar.43 This practice, modelled after medical school case rounds, encourages students to support each other in analysing and responding to lawyering challenges. Students also practise presenting their cases clearly and concisely to their peers.
1. Interviewing
Students will normally open several new cases per semester and take over the representation of several others begun in a previous semester. On the first day of orientation, a significant amount of time may be spent teaching interviewing skills. Clinic directors should consider assigning readings that provide an overview of interviewing techniques and skills. Professor Lora assigns an article that discusses an empirical study of efficient and effective interviewing techniques for interviews of low-income individuals in public benefits cases by Professor Gay Gelhorn.44
As an assignment before orientation, she asks the students to reduce the article into a ‘Top 5’ tips for interviewing clients. Some of the common answers include:
Use broad open-ended questions to begin the interview, listen without interruption, acknowledge client emotion, use continuing phrases to encourage the client to keep going with their story without interrupting the flow of the conversation (such as ‘go on,’ ‘yes,’ ‘uh huh,’ or ‘continue’), and do not become preoccupied with forms or paperwork until the client has had the opportunity to share their complete story.
During orientation, Professor Lora explains the goals are when we interview a client: we want to listen, begin to understand, and acknowledge our client’s concerns to better understand the way in which their legal issue connects with the client’s lived experience so that we may better advocate for the client.
With this background and the tools to draw upon, Professor Lora has the class watch a recording of an interview conducted by a previous student of an actual clinic client. She then works through with the students what went well and what could have gone better. Students also engage in a simulated interview of each other. Feedback from students has shown that this structure of read and reflect followed by watch and reflect allows students to walk into their first interview feeling prepared and competent.
As an alternative, Professor Speidel’s clinic uses a mock intake file and hires an actor to play the client. Each student team must plan and conduct an intake interview with the client. Immediately after the interview, the students complete a self-evaluation form. They then write an intake memorandum analysing the case and recommending next steps and whether to represent the client. The interview is recorded, and the actor also evaluates each student. After reviewing the recording, evaluations, and intake memos, Professor Speidel meets with each student to reflect on the experience.
Many clinics also record actual client meetings for purposes of supervision and reflection. With written permission from the client, Professor Lora records and reviews the student’s first interview and then spends time with the student reflecting on their performance. Of prime importance is whether the student showed the client dignity and respect by listening to the client’s story without interruption. As Professor Gellhorn points out in their article, doing this well is perhaps the most efficient way to obtain the detailed factual nuance you need to effectively advocate for your client.
The students may then watch their recording and draft a reflective memo to discuss areas of strength and improvement. Many students express sincere appreciation for the opportunity to learn interviewing skills in this setting. One third-year law student recently commented, ‘I can’t believe I almost graduated law school without learning how to interview a client!’
2. Fact and legal investigation
Once students have effectively interviewed their client and obtained the necessary opening paperwork and authorisations, students must then develop a plan for fact investigation. More directive professors may have developed the use of a proof chart to help students organise what they need to prove, that is, the elements of the case, and what evidence they have or need to obtain to prove that fact.
Students may be required to draft legal memoranda for the file in the event legal issues arise. Mind mapping sessions during the case review meeting can be an effective tool for fleshing out potential avenues for fact investigation. Often, obtaining the right piece of evidence will require that students obtain the appropriate authorisations, such as a medical release, or an agency power of attorney. Students will also identify and communicate with witnesses. Some students seem reluctant to call witnesses, but we find that providing students with encouragement and the opportunity to practise helps students find the courage. We speculate that the reluctance to pick up the phone may have to do with the generational transition from voice to text communications.
Some students excel at fact investigation. For example, a Lewis & Clark student needed to prove that a mental health court had placed a client’s dependent in his care through a court proceeding that occurred in 1989. This is a very tall order even for seasoned fact investigators, as the records had been purged and were no longer available from the court. After multiple conversations, the student was able to elicit from the client the name of a medical professional involved in the hearing. She then sent letters to all the addresses appearing in a web search for that name. Much to everyone’s surprise, the doctor got in contact with the student and offered to provide a witness statement! The student then was able to successfully settle the case with the IRS.
3. Client advice and communication
Both of our clinics require that students conduct most if not all of the client communication. The clinic at Lewis & Clark requires that the professor (or other licensed attorney) be present any time the students are conveying legal advice to ensure that the information is conveyed correctly. At other clinics, including those at Villanova and Georgia State University, the professor never meets the client; students handle all client interactions after initial intake.
With client permission, meetings and calls can be recorded for the supervisor to review afterwards. The supervisor may require students to submit materials in advance of a client meeting, such as a meeting outline with goals, topics, questions and tentative information and advice to be provided. Students also practise client conversations in advance, both in class or in case supervision meetings. This includes practising telling a client that they need to conduct more research or consult with their supervisor before providing an answer to the client’s question. It is important for students to explain their role and establish expectations with clients at the beginning of the case and as needed as the representation progresses.
Clients often have a preferred method of communication, notwithstanding, students may find it most effective to initiate communication orally, either in-person or by phone, and then follow up with a written confirmation of the advice. Students will often be required to convey ‘bad news’ on a case, such as that the likelihood of success in the case is very low in our opinion. It may soften the blow to offer the chance for a second opinion through referral to the local bar. We find that students that can effectively communicate with their clients obtain the best client feedback, even if the communication conveys negative information.
4. Document drafting
Students will experience the fact that much lawyering involves writing, whether it be a client letter, a letter to opposing counsel or agency personnel, pleadings or legal memoranda for the file. It is important to have students reflect on their audience and adjust their tone and legal support based on the recipient. For example, in general, students would do better to cite internal agency policy documents such as the IRS Internal Revenue Manual as opposed to the tax code when corresponding with agency officials. But, students would do better to cite the tax code when working with IRS counsel. We have found that a refresher on the basics of a professional letter (for example, the location of the date, address and salutations, as well as formatting protocols) to be helpful as a surprising number of students are new to this skill. Directive clinics may have a number of templates that can be used for the basic steps of a case, such as for letters of engagement and disengagement. Nondirective clinics will have students work out those letters themselves. Both types of clinic provide students with detailed feedback to address the writing, tone and overall effectiveness of the piece.
The advocacy mind-set
Most controversy clinics in the United States teach ‘client-centred lawyering’ and aim to instil an advocacy mind-set in students.45 United States law students spend much of their first year reading and discussing court decisions, learning to spot issues and analyse problems from the perspective of a judge.46 This is quite different from the approach of an advocate, who is responsible for building the factual and legal picture for the judge to analyse (on top of problem solving, counselling and many other tasks one undertakes for a client). Clinic students must adjust their perspective to fulfil their professional responsibilities to their clients.47
15.7 Working with community members
Having students provide services to their local community benefits students and universities beyond the specific lawyering skills that the students gain, and helps the students grow into more effective advocates able to advance justice for their clients.
Student work with community members can take several forms. Obviously, in every clinic students represent low-income individuals in tax disputes. Individual clients are generally members of communities surrounding the university, although this is not necessarily a requirement.48 Second, many academic clinics enlist students in community education and outreach efforts, in addition to their individual case work.49 Third, in some clinics, although not often in tax clinics, students engage in community lawyering, representing a group or a coalition of clients in systemic impact projects.50 Students may also participate in systemic advocacy efforts to raise awareness of problems faced by different groups of low-income taxpayers, such as responding to agency requests for public comments on proposed rules, filing amicus briefs, pursuing systemic impact litigation and submitting systemic advocacy reports to the IRS Taxpayer Advocate Service.51
Law students in the United States are disproportionately white and economically privileged compared to the general population.52 By working with clients who are different from themselves, students develop empathy and understanding of others both as a lawyering skill, and as a vector for personal growth.
Public service is an important component of lawyers’ professional obligations in the United States.53 Clinic students see the impact of public service first hand, as they help people who do not otherwise have access to tax lawyers or accountants, access the benefits to which they are entitled and exercise their legal rights. This experience generally leads students to a greater appreciation of bar pro bono requirements, and a greater understanding of the privileges they wield as future lawyers.
Likewise, clinic students who participate in community education and outreach efforts gain benefits beyond the skills required for the event they plan and conduct. For community education to be successful, it must be responsive to community needs and interests. Students can assist the clinic staff in building relationships with community partners, listening to the communities served by the clinic, and providing responsive community information, presentations and materials. Students in some clinics also translate materials into languages spoken in the community.
For example, at Lewis & Clark, students work with a partner on an advocacy project to educate taxpayers about their rights and responsibilities under the tax code. In general, the students are required to create a deck of slides and present those to a group of low-income taxpayers or community partners that work with low-income taxpayers. Students have presented on a broad range of topics such as tax tips for small businesses, the child tax credit and other tax issues for low-income taxpayers.
15.8 Conclusion
Academic tax clinics advance the fairness of the income tax system on individual and systemic levels, while providing law students with skills, advocacy experience, greater understanding of the challenges faced by poor and marginalised people, and finally with habits of reflective, thoughtful practice. Students benefit from enrolling in an LITC course whether or not they pursue a career in tax law. Ultimately, the legal system benefits when attorneys enter practice as experienced advocates for justice with public service values.
Appendix 15.1: Form template
IRC 6015(f) Equitable Relief Proof Chart
Lewis & Clark Law School Low-Income Taxpayer Clinic
Threshold Conditions
• Joint return filed
• 6015(b) and (c) relief not available
• Timely filed – before expiration of CSED
• No assets transferred as part of a fraudulent scheme
• No transfer from nonrequesting to requesting to avoid tax or the payment of tax
• Requesting spouse did not participate in the filing of a fraudulent return
• Liability is attributable to an item of the nonrequesting spouse or an underpayment resulting from nonrequesting spouse’s income.
Factor | For, Against or Neutral | Facts | Evidence |
STREAMLINED RELIEF | |||
Divorced, Separated, Living Apart | |||
Economic Hardship | |||
Knowledge | |||
Abuse Mitigating Knowledge | |||
NON-EXCLUSIVE LIST OF FACTORS IF STREAMLINED RELIEF UNAVAILABLE | |||
Divorced, Separated, Living Apart | |||
Economic Hardship | |||
Knowledge | |||
Abuse Mitigating Knowledge or Influencing other Factors | |||
Legal Obligation (Divorce Decree) | |||
Tax Liability | |||
Benefit | |||
Compliance | |||
Mental or Physical Health | |||
TOTAL | No single factor is determinative, and all of the factors should be considered and weighed appropriately. |
* Sarah Lora, Associate Clinical Professor of Law, Director of the Lewis & Clark Low-Income Taxpayer Clinic, Lewis & Clark Law School; Christine Speidel, Associate Professor of Law, Director of the Federal Tax Clinic, Villanova University Charles Widger School of Law.
1 Ms M – (not her real name) was a client of the Lewis & Clark Low-Income Taxpayer Clinic (LITC). Her case story was featured in the 2021 LITC Program Report published by the IRS Taxpayer Advocate Service: Low Income Taxpayer Clinics, ‘2021 Program Report’ (2021), <https://perma.cc/8LNS-37BK> accessed 22 July 2022.
2 Role assumption has been described as ‘the defining feature of clinical education’. See Peter Toll Hoffman, ‘Clinical Course Design and the Supervisory Process’, Ariz St L. J. 277 (1982): 283. Its primacy is widely recognised even as some scholars have questioned the effectiveness of the model for all students. See, for example, Minna J. Kotkin, ‘Reconsidering Role Assumption in Clinical Education’, NM L Rev. 19 (1989): 185, 194: ‘In the experiential learning model […] [t]he learner must first immerse herself in immediate, concrete experience’.
3 Deborah N. Archer, ‘Open to Justice: The Importance of Student Selection Decisions in Law School Clinics’, Clinical L. Rev. 24 (2017): 1, 5: ‘But most clinics have a dual mission. They also afford an opportunity to impart a passion for social justice and the broader skills necessary to achieve social justice’.
4 See IRS Pub. 5066, n 1; IRS Pub. 3319 (May 2021), 1, <https://perma.cc/A6P9-P6VM> accessed 22 July 2022.
5 See Archer, ‘Open to Justice’, 19. Tax clinic clients frequently contend with barriers such as poverty, disability, language access, literacy, and the lingering impacts of slavery and institutionalised racism in the United States.
6 See generally W. Edward Afield, ‘Social Justice and the Low-Income Taxpayer’, 64 Villanova L. Rev. (2019): 347.
7 Email from Villanova Law graduate K. S., J. D. to author (2020).
8 The examples provided in this chapter are not universally practised nor necessarily practised by both authors of this chapter. We have attempted to provide a range of examples and viewpoints. Clinic professors should design their course in a manner that makes the most sense for them and their students.
9 Role assumption has been described as ‘the defining feature of clinical education’. See Hoffman, ‘Clinical Course Design and the Supervisory Process’, 283; Kotkin, ‘Reconsidering Role Assumption in Clinical Education’, 194.
10 ‘A.B.A., Standards and Rules of Procedure for Approval of Law Schools’ (ABA 23 August 2021) <www.americanbar.org/groups/legal_education/resources/standards/> accessed 20 June 2022. Unaccredited law schools also exist in the United States.
11 Ibid., 304(a)(5). The classroom component is sometimes referred to as a seminar. At some schools the two components are graded separately; at others, students receive one grade for the entire course.
12 Frequently used texts include Deborah Epstein, Jane Aiken and Wallace Mylniec, The Clinic Seminar (West Academic Publishing, 2014); David F. Chavkin, Clinical Legal Education (Carolina Academic Press, LLC, 2002); David A. Binder, Paul Bergman and Susan C. Price, Lawyers as Counselors: A Client-Centered Approach (West Publishing Company 2001); and Stefan H. Krieger and Richard K. Neumann, Jr, Essential Lawyering Skills (4th ed., Wolters Kluwer Law & Business, 2011).
13 Diana Leyden, Advocating for Low Income Taxpayers: A Clinical Studies Casebook (Vandeplas Publishing, 2008).
14 For example, enrolment in Harvard Law’s twelve-week-long Federal Tax Clinic consists of a seminar with two ‘classroom credits’ meeting for two hours per week, plus three, four or five ‘clinical credits’ (at the student’s election), requiring twelve, sixteen or twenty hours of case work per week. At Harvard, each clinical credit requires four hours of case work per week or forty-eight hours per semester. See <https://hls.harvard.edu/dept/clinical/clinical-credits/> and <https://hls.harvard.edu/academics/curriculum/catalog/default.aspx?o=77734> accessed 20 June 2022.
15 Villanova and Lewis & Clark have thirteen-week semesters. At Villanova, students earn six credits and spend four hours per week in clinic seminar plus fourteen hours per week on case work. At Lewis and Clark, students earn three credits and spend two hours per week in seminar plus eight hours per week on cases. It should also be noted that some schools require a year of clinic enrolment rather than a semester.
16 Professor Wallace Mlyniec points out that even ‘nondirective’ supervision is directive to some degree. Wallace J. Mlyniec, ‘Where to Begin? Training New Teachers in the Art of Clinical Pedagogy’, Clinical Law Review 18 (2012): 101, 114. We use the directive/nondirective dichotomy here for convenience as we find it a useful framework.
17 See generally David Chavkin, Clinical Legal Education: A Textbook for Law School Clinical Programs (Anderson, 2002), Chapter 2 ‘Clinical Methodology’, 7–17; Epstein et al., The Clinic Seminar; for a striking example of nondirective supervision in action, see: Agata Szypszak, ‘Where in the World Is Dr. Detchakandi’, Clinical Law Review 6 (2000): 517.
18 Law students enrolled in academic LITCs may be authorised to represent taxpayers before the IRS. IRS Publication 3319, 57 (May 2021) (citing Delegation Order 25-18 (Rev. 4), 8 April 2021). The US Tax Court as well as state and federal courts also have student practice rules which allow students to gain direct experience advocating for a client. See, for example, United States: US Tax Court Rules of Practice and Procedure Rule 24(a)(5); EDPA. Local Rule of Civil Procedure 83.5.1.
19 Many clinic clients have valid tax debts that they cannot pay. These taxpayers may be eligible for IRS programmes that are alternatives to enforced collection. One such programme is Currently Not Collectible, which prevents the IRS from collecting while a taxpayer is suffering from financial hardship. Other programmes include Installment Agreements, allowing payment in monthly instalments, and the Offer in Compromise programme, which allows qualifying taxpayers to settle their debt for less than they owe. See IRS Taxpayer Advocate, I Can’t Pay My Taxes: What Should I Do? <www.taxpayeradvocate.irs.gov/get-help/paying-taxes/cant-pay-my-taxes/> accessed 20 June 2022.
20 This quote is reconstructed from contemporaneous notes of a December 2021 exit meeting with an Autumn 2021 Tax Clinic student, on file with author.
21 One such tool is Blue J, which uses artificial intelligence to predict the outcomes of tax cases. See ‘Blue J’ (Blue J Legal, 16 May 2022), <www.bluej.com/> accessed 3 June 2022.
22 For the autumn 2021 semester, the assignment was to read Thomas A. Mauet and David Marcus, Pretrial (10th ed., Wolters Kluwer, 2019), Chapter 1.
23 For the autumn 2021 semester, the students were provided with three pages of sample charts one might create for a landlord–tenant dispute from Stefan Krieger and Richard Neumann, Essential Lawyering Skills (2nd ed., Wolters Kluwer, 2003).
24 This is the same mock client whom the students interview, discussed later.
25 A sample proof chart from the Lewis & Clark clinic is attached as Appendix A. In the Villanova clinic, students are provided with a template without the legal elements listed. For their assignment they must first research the legal elements of their case to create a proof chart.
26 See Sue Bryant and Jean Koh Peters, ‘Five Habits of Cross-Cultural Lawyering and More Habit 3: Parallel Universe Thinking’ (Yale University, 2022), <https://fivehabitsandmore.law.yale.edu/jean-and-sues-materials/habits/habit-3/> accessed 20 June 2022.
27 See generally Alex Hurder (ed.) et al., Clinical Anthology: Readings for Live-Client Clinics (1st ed., Anderson Publishing Co., 1997).
28 See Mlyniec, ‘Where to Begin?, 114: ‘Although engaging in an exploration is properly the “default” method of supervision, it need not be employed in every interaction’.
29 This approach is similar to the three-stages advocated by Professor Peter Toll Hoffman. See Peter Toll Hoffman, ‘The Stages of the Clinical Supervisory Relationship’, Antioch Law Journal 4 (1986): 301.
30 Clinic staff may handle cases during the summer school break if student staffing is insufficient.
31 This graduated approach was used in the Family Law Unit at Harvard Law’s clinical program in the early noughties.
32 Marjorie M. Shultz and Sheldon Zedeck, ‘Predicting Lawyer Effectiveness’, CELS 2009 4th Annual Conference on Empirical Legal Studies Paper. Other taxonomies of relevant skills and abilities are available. See, for example, Susan M. Case, ‘The NCBE Job Analysis: A Study of the Newly Licensed Lawyer’, The Bar Examiner 82 (March 2013): 52.
33 Variations on this theme are common. See, for example, Meredith Heagney, ‘Plan, Do, Reflect: Clinical Teaching at the Law School’, The University of Chicago Law School Record 59, no. 2 (2013): 42, available at: <https://chicagounbound.uchicago.edu/lsr/vol59/iss2/15> accessed 22 July 2022; William P. Quigley, ‘Introduction to Clinical Teaching for the New Clinical Law Professor’, Akron Law Review 28 (1995): 463, 477 (describing four stages: planning, consultation with supervisor, performance, and post-activity analysis and evaluation); see also, Kenneth R. Kreiling, ‘Clinical Education and Lawyer Competency: The Process of Learning to Learn from Experience through Properly Structured Clinical Supervision’, Maryland Law Review 40 (1981): 284, 294 (charting the process in six stages).
34 See generally Bryant and Peters, ‘Five Habits of Cross-Cultural Lawyering and More Habit 3’. Some clinics also use the helpful reflective framework.
35 See Chavkin, Clinical Legal Education, 24.
36 Current communication tools include Slack, Trello, Microsoft Teams and Ring Central.
37 United States: American Bar Association, standard 303(a)(1).
38 United States: American Bar Association, standard 301(a)(1). In law, ‘doctrine’ refers to rules, principles and theories. Bryan A. Garner, Black’s Law Dictionary (Thomson West, 2014).
39 Professor Lora teaches in the state of Oregon. The rules applicable there are different from the rules adopted in Pennsylvania where Professor Speidel teaches. Compare: <www.osbar.org/_docs/rulesregs/orpc.pdf> with <www.padisciplinaryboard.org/for-attorneys/rules/rule/3/the-rules-of-professional-conduct> accessed 22 July 2022. Most if not all states’ rules are modelled from the ABA’s model rules of professional conduct. See: <www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/> accessed 22 July 2022.
40 The Lewis & Clark LITC invites the director of claims from the Oregon Professional Responsibility Fund (PRF). The Oregon Professional Liability Fund (PLF) is the mandatory provider of malpractice coverage for lawyers in private practice in the state of Oregon. Every lawyer who is an active member of the Oregon State Bar who engages in the private practice of law with a principal office in Oregon is required to carry PLF coverage as a condition of their law licence. As a member of the public who receives legal services from lawyers in Oregon, this means that all lawyers in Oregon have coverage for the legal work they perform.
41 Sue Bryant and Jean Koh Peters, ‘Five Habits for Cross-Cultural Lawyering’, in Kimberley Holt Barret and William H George, Race, Culture, Psychology, and Law (SAGE 2005).
42 Teaching tools and materials can be found on the Five Habits website. Sue Bryant and Jean Koh Peters, ‘Five Habits of Cross-Cultural Lawyering and More’ (Yale University, 2022), <https://fivehabitsandmore.law.yale.edu/> accessed 20 June 2022.
43 See David F. Chavkin, Clinical Legal Education (Carolina Academic Press, LLC, 2002), 13; Epstein et al., The Clinic Seminar, ‘Conducting Rounds’, 757–9.
44 Professor Lora assigns Gay Gellhorn, ‘Law and Language: An Empirically Based Model for the Opening Moments of a Client Interview’, Clinical Law Review 1 (1997): 321.
45 See generally, David Binder, Paul Bergman and Susan Price., Lawyers as Counselors: A Client-Centered Approach (2nd ed., West, 2004); see also Archer, ‘Open to Justice’, 16: noting that a person cannot ‘be a skillful lawyer without embracing the value of client-centeredness’.
46 The Princeton Review, ‘What Is Law School Like: First-Year Curriculum’, <https://perma.cc/DV5S-NGCA> accessed 1 July 2022; see also US Legal, ‘Law School First Year Curriculum’, <https://lawschool.uslegal.com/resources-when-you-are-in-law-school/law-school-first-year-curriculum/> accessed 3 June 2022.
47 See Archer, ‘Open to Justice’, 16–17.
48 For example, the Harvard clinic accepts impact litigation cases nationwide. Harvard’s Tax Clinic is discussed by Keith Fogg in Chapter 11.
49 LITCs funded by the IRS Taxpayer Advocate Service are required to engage in community education and outreach. See IRS Publication 3319. Educational events are those providing substantive or procedural tax information to individuals. Outreach events are those providing information about the clinic’s services and how to access them.
50 Monika Batra Kashyap, ‘Rebellious Reflection: Supporting Community Lawyering Practice’, NYU Review of Law and Social Change 43 (2019): 403, 404; and Afield, ‘Social Justice and the Low-Income Taxpayer’, 359–61, who describes the tension in law school clinics between individual representation and community lawyering approaches.
51 Afield, ‘Social Justice and the Low-Income Taxpayer’, 356–7.
52 A. Benjamin Spencer, ‘Law Schools, Law Firms Must Share Responsibility for Diversity’, Bloomberg Law News, 21 July 2021, <https://perma.cc/4ND9-XZ2Y> accessed 22 July 2022: ‘Blacks and Hispanics continue to be underrepresented [in law school classes] compared with their proportions in the U.S. population’; see generally Miranda Li, Phillip Yao and Goodwin Liu, ‘Who’s Going to Law School? Trends in Law School Enrollment Since the Great Recession’, UC Davis Law Review 54 (2020): 613.
53 United States: American Bar Association, ‘Model Rules of Professional Conduct’, Preamble: A Lawyer’s Responsibilities.