At the recent ABA Tax Section meeting in Orlando, the Pro Bono and Tax Clinic Committee had a panel on the Tax Court calendar call program to celebrate the 25th anniversary of the program. The twenty five year celebration was a little squishy in terms of a precise time frame because of the informality with which the program began but it allowed the panelist to talk about an action begun by one person that has turned into an opportunity for pro se litigants that no other federal court offers. The panel showcased again how pro se friendly the Tax Court is to the 70% of its petitioners who enter its doors with no representative but also how the Court, before embracing this program, took slow steps at first out of concerns for those taxpayers.
read more...Karen Hawkins, who is the chair elect of the Tax Section, got the calendar call program started in the early 1990s in San Francisco. She had a tax controversy practice in that area that regularly brought her to Tax Court calendar calls. At those calendar calls she observed that unrepresented taxpayers appeared who had no idea what to do. So, she began trying to assist them by giving them advice on a quick, informal and pro bono basis. The problem she observed in San Francisco was occurring throughout the United States. I noted in a prior post that one Tax Court judge’s solution in a case in which the petitioners were particularly clueless was to have me as Government’s counsel waiting to try the next case sit with petitioners at their table and explain what was happening in the case.
Karen not only identified the problem faced by pro se petitioners at calendar call but she brought it to the attention of the Tax Section of the California Bar. Representing the California Bar, she approached then Chief Judge Hamblin and asked him for permission to have the program of assisting pro se petitioners at calendar call recognized by the Tax Court. He said no. In the panel discussion Karen mentioned an incident that occurred before Judge Cohen in which an attorney came to a calendar call ostensibly to assist a pro se petitioner and ended up charging a fee. This type of anecdotal experience would naturally have a dampening impact on the interest of the Court in such a program.
Chief Judge Hamblin’s concerns would have been similar to the concerns of the Tax Court judges when the first low income taxpayer clinics were established 15 years earlier. I wrote about those concerns in an article on the history of the clinics. The concerns arise from the cautious nature of a body like the Court and the need to protect the litigants before it as well as the institution of the Court itself. Fortunately, Judge Swift, who came from California, stepped up and said that he would conduct a pilot to allow the Court to determine if providing some assistance to pro se petitioners at calendar call would benefit the petitioners and the proceeding. For the first few calendar calls Karen was person who came and who met with taxpayers. She did not have a group of volunteers with her. She gave only her first name and did not give out a business card because one of the concerns centered on the possible use of the calendar call program as a business building exercise. Pete Bakutes, the District Counsel for the IRS in San Francisco, was very supportive of the effort and that made a difference. Before the Court arrived in San Francisco, Karen, Pete and Judge Swift had a conference call to discuss who the judge would announce the availability of Karen to unrepresented petitioners.
Judge Swift reported back to the Court that the assistance at calendar call was a success. Not too long thereafter, Judge Nims visited San Francisco. On his calendar was a taxpayer who, at that time, would have been called a tax protestor. Having seen a few trials involving tax protestors, I am sure that Tax Court judges do not look forward to them. One of the volunteer attorneys who came to that calendar convinced the tax protestor to concede (something I have had almost no success in doing in that same roll.) The actions of that volunteer at the calendar call convinced Judge Nims on the benefits of the program, and he returned to DC to tell others on the Court.
Karen brought the idea of the calendar call program to the ABA Tax Section to try to get it to adopt the program as a section activity, but the Tax Section was not ready. The program continued to evolve in San Francisco and in pockets around the country but did not have broad institutional support. In Richmond in the mid-1990s Nina Olson participated in calendar call with the Community Tax Law Project. She and I would call each judge coming for a calendar call in Richmond and most were receptive to announcing the presence of attorneys to assist pro se taxpayers. Like the Court and the ABA Tax Section, Chief Counsel’s office did not wholeheartedly embrace the idea of the calendar call in the early years. Part of the success of the program in San Francisco would have been due to the forward looking vision of Pete Bakutes who headed the Chief Counsel office there. The struggle to get it going and accepted by the institutional players followed a similar path to the struggle to get the low income tax clinics going as discussed above. Chief Special Trial Judge Panuthos was an early supporter on the Court for this and most programs to assist pro se petitioners.
The program got its institutional boost when Judge Colvin became the Chief Judge. He saw, in many ways, the benefits to the Court and to the system of representation for the pro se petitioners. He institutionalized the program at the Court in a way the Court had recently institutionalized its relationship with clinics. At almost the same time that the Court embraced the calendar call program in a formal manner, the Tax Section of the Texas Bar stepped up and decided that it wanted to adopt this as a formal program of its Section. Elizabeth Copeland was persuaded to spearhead that effort and she did a great job in organizing attorneys across a state that has the most Tax Court places of trial of any state. During the panel discussion Elizabeth described all of the steps she took to get that program off of the ground which included attending all of the calendar calls held in the state for the first couple of years. The organization and efficiency of the program in Texas remains a model for other programs. The success of program in Texas and in New York City under the guidance of Frank Agostino spurred the creation of programs elsewhere. The Low Income Taxpayer Committee of the Tax Section began to work with tax clinics and bar programs around the country to insure 100% coverage for Tax Court calendars. Former committee chair Andy Roberson, who played a role in the effort to get 100% coverage even in cities with no local bar or LITC calendar call program, continues to update the coverage list for all 74 cities and the committee works to make sure that full participation exists.
Now that calendar call programs exist throughout the country in every Tax Court place of trial, and now that the Tax Court, the ABA Tax Section and Chief Counsel, IRS agree that the program provides a benefit to the petitioners and the system, the challenge centers on improving the program rather than building it. Chief Judge Marvel spoke during the panel about a study conducted in the early 1980s which looked at why cases went to trial. She spoke of ways the groups involved can continue to study the system looking for improvements. Chief Special Trial Judge Panuthos, who was also on the panel, reminded the clinicians attending the program of their opportunity each year in their participation letters to provide ideas for improvement of the program. Of course, the Tax Court does not limit its receipt of ideas and suggestions to that group or to that submission.
Bruce Meneely, who heads the Chief Counsel’s SBSE division, spoke on the panel about changes his office seeks to make in an effort to better engage with pro se taxpayers. His office is going to call petitioners immediately after the filing of the petition to engage the petitioners. His office is working with Appeals to determine why Counsel ends up settling some cases instead of Appeals and how the process could change to achieve settlement at an earlier stage. Chief Counsel’s SBSE division just hired 30 paralegals to assist with small cases which he hopes will also lead to earlier resolution before the need to involve attorneys. He solicited ideas on how to reach pro se petitioners prior to calendar call because everyone has an interest in resolving the cases as early in the process as possible. He spoke of the possibility of a status conference with the Court prior to calendar call which some Tax Court judges have adopted as another way to foster resolution before calendar call.
Many tax lawyers around the country now attend calendar call when the Tax Court comes to their city. The program does a good job of assisting those who come to Court unrepresented and still needing to resolve their case. As the panel discussed, even better results for everyone can occur if pro se taxpayers can be linked to legal advice earlier in the process in a setting that does not put the pressure of an almost immediate trial on the parties. As the Court, the bar and Chief Counsel’s office continue to evolve in their efforts to create a more perfect union of taxpayers and representatives, the calendar call program continues to stand out as a significant effort which distinguishes both the Tax Court and the members of its bar for their service to otherwise unrepresented individuals caught up in a process that can overwhelm those individuals. It is interesting to see how the vision of Karen Hawkins in starting this program, like the vision of Stuart Filler who started the first low income taxpayer clinic at Hofstra Law School in 1974, has created a better environment for taxpayers trying to resolve a dispute with the IRS.
Keith, this is a great post. In addition to providing an insider’s history of the beginnings and evolution of the calendar call program, the story should serve as an inspirational lesson illustrating how much good one or a few individuals can accomplish if they think they have an idea that will make positive changes in “the way things are” and are willing to dedicate their time and effort to seeing it through. I find it particularly inspiring in this context, where the key players were motivated by accomplishing a public good without the promise of financial benefit and despite [in some cases] the financial detriment that’s often required to accomplish a true public benefit. I’ve had great admiration for those participants who I know personally: Karen, Nina, Elizabeth, Frank, Paige, and of course you. But this is the first time I’ve really understood their roles in making the calendar call program what it is today. I’m proud of all of you, as well as the others who played significant roles in the evolution of the program. I’m also proud of the ABA Tax Section for supporting the program and of the Tax Court, where [as a lowly law clerk] I got my start as a tax lawyer. Thanks!
Ron
Keith,
This is a great piece (despite your misspelling of the name of Judge Lapsley Hamblen)
Not to diminish in any way Karen Hawkins’ incredible service to low income taxpayers, arguably, she was not the first private practice lawyer to appear at calendar calls. James Lewis of Paul Weiss was a long-time tax partner who rose to be a Chair of the Tax Section in the early or mid-1980s, when he was about to retire from Paul Weiss. (Shockingly, I can’t find on the Internet the exact dates for his having been Chair or almost anything about Jim.) He may have been appearing at New York calendar calls as early as while he was Chair and still at Paul Weiss. He recognized the problem of unrepresented taxpayers and decided that, when he retired from the Chair and his firm, he would like to run one of the early academic Tax Clinics. He contacted Cardozo School of Law in Manhattan (a law school only founded in 1978) and asked for it to lend him students and form a Tax Clinic. Cardozo agreed.
The way the Cardozo clinic operated was that Jim and a few students would go to the calendar call, where Jim would bring with him a yellow legal pad on which he would write down, usually, 4 to 8 case names for the clinic to pick up. He often got continuances or instantly settled a case, but sometimes, he and a student did an instant trial later that day or week.
Cardozo did not advertise that it was running a clinic (I don’t think that would be allowed then), and the sole source of its cases was calendar call pick-ups. In the 1990s (possibly earlier), the Tax Court (whose Chief Judge was then Mary Ann Cohen) signed what looked like a contract that formally recognized the clinic and laid out some rules. I am sure the court signed similar “contracts” with other academic clinics. In the ‘aughts, the Tax Court established a standard form for all clinics and calendar call programs, superseding these “contracts”.
Jim Lewis, in his retirement, not only created the Cardozo Tax Clinic, but he began teaching tax courses at Cardozo. He died in 1998, running the clinic from the mid-1980s to the very end.
Basically, the Cardozo “clinic” was just Jim showing up at calendar calls and working the cases he picked up there — usually assisted by students. And unlike current clinics, Jim sometimes picked up and worked cases of pro se taxpayers who were not poor — e.g., tax shelter investors, whose cases he would settle through either piggyback stipulations or under a standard closing agreement for the particular shelter involved. (He did not do tax shelter trials.)
Jim was also unafraid to bring cases to higher courts. In cases picked up at the calendar call, he did at least two Second Circuit appeals, and he even unsuccessfully sought cert. in once case.
I know of Jim’s work because I took over the Cardozo Tax Clinic and ran it from 2003 until the school discontinued the clinic when I retired in 2013. When I arrived, one of the first things Cardozo asked me to do was go through the files of the Tax Clinic sitting in Cardozo’s basement that covered the period from when the tax clinic was established in the mid-1980s until 1999. That’s where I found not only Jim’s calendar call folders (which contained his listing of cases picked up), but also all of the client case files. I salvaged some of Jim’s work for models (all briefs and the cert. petition), but had to shred dozens of boxes of other records of the clinic to make more storage room for more recent files from Cardozo’s other clinics.
I never met Jim. All I remember is my seeing him on the dais of the Tax Section at some plenary lunch n the 1980s, when I was a young lawyer. But, I don’t feel he has gotten enough credit for what he did and when he did it. So, even though he will never know, I write this piece, so he and his deeds will now be searchable on the Internet.
Let’s not kid ourselves that “everyone has an interest in resolving the cases as early in the process as possible.” If IRS had an interest in that, they would not assign cases to an Appeals officer located 600 miles away. What many pro se taxpayers want is a face-to-face discussion of their case with an IRS employee, who in many cases could just as well be a GS-7 as a GS-14.
The obvious place to assign this work is the Taxpayer Advocate office. Its employees could evaluate a petitioner’s case, answer questions about the litigation process, and provide information on volunteer lawyers and clinics that might be interested in helping. Congress might not buy the idea of saving Appeals, Counsel and Tax Court resources by funding this sort of triage, but we don’t know because no one has asked.
Bob – I do not know if shifting this work to TAS is the answer but a big problem with the current system is the length of time it takes appeals to get to the cases of the pro se litigants. In many cases these individuals file their Tax Court petitions, receive an answer about two months later that mostly says deny and means very little to the pro se litigant and then wait several more months before someone from appeals contacts them. When they do hear from appeals some have lost interest and others have trouble finding their information in the time periods appeals has left to work the cases. The system would work better if someone from the government triaged the case shortly after it was filed and not months afterward. Keith
My impression was that the LA County Bar Tax Section had started a pro bono/pro se support program like you describe a number of years (5?) before Karen replicated it in the Bay area?? Am I missing something?
Dave Anderson
Dave – I do not know about the LA County Bar Tax Section starting a program earlier but would be happy to learn. I was not aware of the work that Jim Lewis was doing until I read Carl’s Smith’s comments to this same post. If you have more details or can point to someone who does, I would be happy to follow up. Keith
Is there any protection for participating attorneys from malpractice claims of pro se litigants who are dissatisfied with the results of their Tax Court case? Or is it a case of “no good deed goes unpunished”?
Jack
You may get protection if you appear at a calendar call on behalf of a low income taxpayer clinic. You would need to check with the clinic in your location to learn if they provide coverage for volunteers. Some of the bar sponsored programs may provide protection and again you would need to check with the program in your location. There is no blanket coverage. Most lawyers who volunteer probably have coverage through their general policy. I am unaware of a claim being brought be a dissatisfied pro se litigant against a participating attorney.
Keith
For most of the cases at a calendar call, people shouldn’t worry about malpractice coverage. If your malpractice insurance is anything like the one my old firm used to carry, anything you got sued for would fall well into your deductible, so you are effectively self-insuring anyway. I have never heard of anyone ever being sued by an unhappy pro se person concerning the free help he or she got at a calendar call, even if theoretically possible. The best practice at the calendar call is that if you don’t know an area well enough, ask someone else at the calendar call to advise on that case or take it over instead of you. I’ve done that in certain areas like 469. And if the pro se taxpayer strikes you as a tax protestor (who may like to litigate frivolously), you can steer clear of that cases so he or she doesn’t later sue you.
I’ve been participating in this program as a volunteer attorney at the LITC of the Legal Aid Society of San Diego, Inc. It is a great program and like all things could benefit from a few little changes. I recently called the Tax Court and had a long conversation with a very nice and helpful person (unfortunately I have misplaced her name) about getting pre-calendar call access to the Tax Court files on upcoming pro se cases. These are all pubic records, sitting on the Tax Court’s file servers ready for eAccess, but currently only available to the attorney of record (which of course doesn’t exist because these are pro se cases). As either Keith or Leslie mentioned in a prior post, anyone can look at any physical file they want to as long as they travel to the Court building in D.C. It is time to allow electronic access, even if limited to LITC’s or Bar Association calendar call programs.
The most time consuming part of helping a pro se Petitioner is listening to their explanation of their case. Often this includes a recitation of a multi-year adventure that includes descriptions of their divorce or medical problems. While we are sympathetic to the causes of their current predicament we have a very short period of time to help them and there are often others awaiting our assistance. Meanwhile the Judge is proceeding with the calendar call and the pressure is on. If we were able to view the pro se files in advance we could make some decisions about who we can help and make sure we are on top of the relevant law before we show up at the calendar call. While we may be investing our time looking at cases of Petitioners who will not want our assistance, that is a judgment call the LITC will have to make. If the Court would be more flexible in allowing on-line access I think we can improve the program for everyone’s benefit.
At the conclusion of my conversation with the Court employee she and I were in general agreement about the advantages of allowing access and she was going to talk to some of the Judges about making some changes. She was, however, skeptical that anything would happen citing continued resistance from the Judges to on-line file access. The fact that the Tax Court is the only Federal Court that does not have public electronic access to all filings via Pacer does not seem to influence the Courts decision making on this subject. She promised to call me back. Its been at least 2 months and I’m still waiting for the call. Maybe she too misplaced my contact information. Maybe she reads your excellent blog and will just post her response here.