Professionalism and Confidentiality
Summarized below are important rules applicable to professionalism and confidentiality. Under “Office Procedures” are additional rules relating to “File Maintenance”.
The Clinic is designed to provide clients with the highest quality professional representation. You are to furnish competent advice and zealous representation within the bounds of the law and professional standards. Furthermore, it is the policy of the Clinic that student attorneys will seek to attain a just result within the system of tax administration. The Clinic does not assist clients to avoid tax liability or, in any way, to frustrate the efficient administration of the tax laws. You are to seek the most favorable consideration for your clients within the framework of the tax laws.
Professionalism is encouraged by a Clinic culture that includes treating clients, the IRS, court officials, and fellow student attorneys with utmost respect and courtesy. You have a duty to your clients, the legal profession, and the Clinic to exercise the highest level of personal integrity. Pay particular attention to Treasury Department Circular 230, which governs the Practice before the Internal Revenue Service. It provides in part that a taxpayer representative may be suspended or disbarred from practice before the IRS or censured for violating the Treasury Department rules of practice for, among other things, failing to submit accurate taxpayer information to the IRS.
Confidentiality is an essential component of the attorney-client relationship. It facilitates candor on the part of the client. You must strictly abide by accepted standards of attorney/client confidentiality, including statutory provisions and ABA Model Rules.
The ABA Model Rules (2002) provide that “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is [otherwise expressly permitted by Model Rule 1.6(b).” Rule 1.6 of the Georgia Rules of Professional Conduct states: “A lawyer shall maintain in confidence all information gained in the professional relationship with a client…” In addition, “A lawyer shall provide competent representation to a client” by “employing the requisite knowledge and skill:. Rule 1.1 and Comment 1B of the Georgia Rules of Professional Conduct.
Students should familiarize themselves with these rules and the “comment” that accompanies the ABA Model Rule. Pursuant to these rules, students may not reveal any client information to students not currently enrolled in the Clinic, faculty members (other than the Clinic faculty and staff), friends, family members, etc…
The “comment” to the ABA Model Rule provides that: “The duty of confidentiality continues after the client-lawyer relationship has terminated.” Please refer to the Administrative Procedure page to read about locking the file cabinets and clinic doors.
Section 6103 of the Internal Revenue Code provides that tax returns and tax return information shall be kept confidential and that no person who has or had access to tax returns or tax return information may disclose any such information obtained in any manner in connection with his service. Section 7431 provides that if a violation of this confidentiality rule occurs the violator shall be liable for civil penalties equal to the greater of $1000 for each act of unauthorized disclosure or actual damages. If the disclosure was willful or the result of gross negligence, then punitive damages may be imposed. In any event, the taxpayer whose information has been disclosed shall be entitled to recover the cost of any action, and in some cases attorney fees, brought to collect damages.
Section 7216, which governs the disclosure or use of information by tax return preparers, applies to student attorneys and others who work in the tax clinic. The Taxpayer Advocate has interpreted section 7216 to apply to a grantee, which includes the Tax Clinic, its employees and volunteers. According to the Taxpayer Advocate, “…only those who have a need to know to assist the taxpayer are allowed access to the taxpayer’s information” unless the taxpayer gives written consent for the disclosure. See generally Regulation section 301.7216-2.
Thus disclosure of taxpayer information is absolutely prohibited to anyone not in the Tax Clinic who does not have a “need to know” including other professors, non-tax clinic students, employees of the University, etc… You should at all times safeguard the clients’ files and other taxpayer information not contained in a client file. Client matters should only be worked on in designated Tax Clinic offices or private locations to ensure that client information is safeguarded.
Failure to abide by these confidentiality rules will result in expulsion from the Clinic course and it could result in criminal and civil penalties. Section 7216 imposes a sanction of up to one year in prison or a $1,000 fine or both for each disclosure. In addition, IRC §6713 imposes a civil penalty of $250 for each disclosure or use up to $10,000 per calendar year.
If there is any doubt about whether it is appropriate to reveal client information, you should not do so and consult with your supervisor. For example, when you telephone your client and someone else answers the phone you should assume that you are not authorized to reveal client information to that person. Furthermore, when working on client matters, you should ensure that no confidential client documents are available for others to see. If a student who is not enrolled in the clinic accompanies you into the clinic office space, you should not bring the student into an office where client information is exposed. All documents containing a client’s personal and confidential information that are to be discarded must be destroyed by shredding. Files and client information should never be left in student offices overnight or while you’re out of the Tax Clinic for longer than a short “break”.