Abstract
The “manufacture” of factual indeterminacy in furtherance of tax avoidance activity constitutes unethical attorney conduct. The structuring of facts toward tax avoidance is not merely the rendering of legal advice as contemplated by the Model Code of Professional Conduct and instead may assist the Holmesian “bad man” client toward conduct which is normatively prohibited under the tax laws. As such, only tax planning via factual structuring which results in determinative tax avoidance is ethical attorney conduct. Since a purely formalistic method of legal interpretation is not applied in the United States the circumstance of determinative tax avoidance is extraordinarily rare in the modern era. The moral aspects of legal representation in furtherance of tax evasion are also re-evaluated from both the parochial and postmodern perspectives.