You have presented a hypothetical situation in which Client
approaches Attorney to represent him in a matter concerning his
1991 federal tax return which had been filed as a Married, Filing
Separate return which did not involve his former spouse.  You
indicate that the return in question was prepared by an accounting
firm in which Attorney is also a principal in his capacity as a
certified public accountant.  The accounting firm had prepared
previous returns for Client and his spouse until such time as they
separated due to marital difficulties.  Subsequent to the
separation, Client and his spouse filed separate returns as married
taxpayers filing separately and thereafter, subsequent to their
divorce, as single taxpayers.  

Furthermore, you indicate that, throughout the period of the
representation, Client was represented by Attorney solely in his
capacity as a certified public accountant.  With the exception of
one legal matter which has been handled for Client, which is
unrelated to the tax returns of either Client and/or his former
spouse, all representation of Client has been handled as a
certified public accountant.

You advise that the Internal Revenue Service has proposed an
adjustment to Client's l99l return which does not involve any facts
or circumstances relevant to Client's former spouse.  However, an
adjustment in Client's l99l return would result in a reduction of
a net operating loss which was carried back to the l988 return. 
The l988 return was filed jointly between Client and his former
spouse.  Client, via attorney in his accounting firm, has filed an
appropriate protest with the Internal Revenue Service. 

The Service, acting pursuant to its normal administrative
procedures has opened an administrative appeal on the matter and a
hearing with an appropriate appeals officer of the Service is

Finally, you indicate that Client has instructed Attorney to
minimize the adjustment to the return or, in the alternative, to
pursue additional remedies in either the U.S. Tax Court or the
Federal District Court if such action becomes necessary and is
deemed by Client to have some reasonable possibility of a
successful outcome.  In the event that all available means do not
result in a reversal of the proposed adjustment, Client has
indicated that he has the means to pay all applicable taxes and
intends to pay the taxes if the proposed adjustment by the Service
is upheld.

Under the facts you have presented, you have asked the committee to
opine as to the propriety of Attorney representing Client in a
matter before the Internal Revenue Service pertaining to his l99l
separate return where there is a potential effect on the l988 joint
return filed by Client and his former spouse.

The appropriate and controlling disciplinary rule relative to your
inquiry is DR 5-l05(D) which prohibits a lawyer who has represented
a client in a matter from subsequently representing another person
in the same or substantially related matter if the interest of the
second person is adverse in any material respect to that of the
former client without the former client's consent after disclosure. 

In the facts you present, the committee is of the opinion that
Attorney is responsive to the Code of Professional Responsibility
when functioning in a dual capacity as an attorney and an
accountant.  See LEO #l325.  Thus, the committee opines that
Client's former spouse holds the status of a former client of
Attorney with an interest adverse to a present client of Attorney,
as anticipated in DR 5-l05(D).  Hence, absent consent from Client's
spouse/former client, the committee opines that Attorney may not
continue representation of Client in the Internal Revenue Service
matter which has a potential adverse effect on the former client. 

[DR 5-105(D); LEO 1325]

Committee Opinion
February 22, 1995