SPEAKER_01 0:00

Welcome to Cited Authorities. My guest today is Benjamin Tompkins. I got to know Ben through our work together in the American Bar Association Tax Actions Civil and Criminal Tax Penalties Committee. He spent about 11 years at DOJ and now is a partner at Nardiello, Tarantchik, and Tompkins. Ben, I'm glad that we get to have this conversation. Welcome, decided authorities.

SPEAKER_00 0:26

Thank you for having me. Glad to be here as well. Looking forward to the conversation.

SPEAKER_01 0:29

Bring us back in time to why you decided to work at the tax division after your clerkship.

SPEAKER_00 0:36

So before I started the tax division, I clerked for the DC Court of Appeals. And then after clerking uh had gone to a law firm that had three offices in DC, Florida, and Connecticut, was working as an associate there, mainly working on class action defense uh related to life insurance and annuity uh products and various other consumer fraud class actions. So was dealing with pretty big cases, doing the normal younger associate role, doing a lot of document review discovery motions, had some depositions, argued a discovery motion, and played whatever role the partners wanted me to. Had always wanted to get more hands-on litigation experience, and there's no better place to get that than the Department of Justice. Didn't really have a tax background. Um, was working on financial services cases, did have some experience in responding to IRS summonses related to the investigation then of life insurance products and the tax consequences associated with that. Didn't have an LLM and just had the hands-on practical litigation experience at the time when I was looking to join the department. The tax division had openings. I applied and was uh thankful to receive an offer. Went into the southern section of the civil trial section of then um the Department of Justice Tax Division, now the tax litigation branch.

SPEAKER_01 2:10

Is there one case, Ben, in particular, that stands out to you when you truly felt like, okay, I am a lawyer in DOJ in the tax division?

SPEAKER_00 2:20

Well, there was one of the most high-profile cases I was on um related to one of the cases involving the Obama administration and the targeting of uh nonprofits. And so this case dealt with disclosure under 6103 and uh disclosure action related to the disclosure of donors um for this nonprofit. And it was a very high-profile case. And I was brought in to learn uh to join the team and lead all of the depositions of the IRS employees, including the main person who was accused of leaking the identity of donors to this organization. So that's when you know, yes, everything I do is going to be covered in the press. Any hearing that is gonna be occurring, there's someone there, and I'm a part of a pretty high-profile team. So that was one case that stands out.

SPEAKER_01 3:15

Ben, as an attorney in in court, there's already a feeling of whatever you say is being written down on a transcript when you know that it's going to end up in the paper as well. That's a different level of pressure. How did you manage to forget about that? Or what was what was your mechanism to represent the DOJ and not be so concerned with what the media would say or what the media attention would be and just focus on doing your job?

SPEAKER_00 3:41

Aaron Powell I think you just you have to set that aside. You're you're here to do the job, you're representing the United States, took an oath, and you just carry out the oath. And yeah, you're gonna you may be guarded in terms of how you frame it. You know there's gonna be extra scrutiny, but that's not something you can really be concerned about.

SPEAKER_01 3:58

Aaron Powell How did being an AUSA change the way that you handled a case and inform your practice today?

SPEAKER_00 4:05

Aaron Powell So after I left the tax division, I transitioned to be an assistant United States attorney, switched coasts, went to the uh U.S. Attorney's Office in Los Angeles, and at that time it had its own tax division within the United States Attorney's Office. That office and the Northern District of California were the only ones who had a similar arrangement. And so there I was handling both criminal and civil cases. Being an AUSA was a little different than being a Department of Justice lawyer flying in and out of cases. You're part of a bar. The judges know you. When you go into their courtroom, they expect you're gonna know what's going on. Um, they're gonna h hold you to a higher standard. And I think it forces you when you're an assistant United States attorney to be prepared and be candid with the court and zealously represent the interests of the American people in the United States, but also doing justice.

SPEAKER_01 5:02

And you mentioned to me uh a couple months ago that you trained trial lawyers as well within within DOJ, is that correct?

SPEAKER_00 5:09

Yeah, I was uh one of the uh faculty members at the National Advocacy Center in Columbia, South Carolina. So there's a course for new attorneys when they get hired to the department and was fortunate enough to serve at numerous sessions as a as a faculty member. It's kind of a unique opportunity because also at the end of the period, they're trying cases before a magistrate or district court judge. So you're as a faculty member kind of working closely with the judge, and then they they bring in some actual jurors who actually decide the case, and so you're watching them on video, kind of learning how the jury operates. It's a very unique oppos opportunity. So I was very fortunate to uh work in that capacity at the as a faculty member at the NANC.

SPEAKER_01 5:55

What are the biggest misconceptions that you would see attorneys realize and then get over? Biggest epiphanies they would have about trial practice that you would see on any kind of repeated basis?

SPEAKER_00 6:06

That's a good question. It's a question of kind of reacting to what's actually going on at trial. You can do all the preparation, you can think through something in your head about how an examination is going to occur. And when it doesn't occur, how are you going to react as an attorney? One example, not in my own experience, was uh I was trying a case to a district court judge. It was a kind of a battle of the experts civil case, no jury. And I was giving a closing argument, had all this stuff mapped out. Um, the judge asked a couple questions, interrupted me, and and I could get the sense that this judge already has made up his mind. There's nothing else I can do. I might as well, I've said my points, just sit down. And that's exactly what I did. And then in this case, there was no written opinion. The the district court judge took a couple hours we went to launch and came back and then just ruled from the bench. Thankfully it was in our favor. So it's just kind of something you you react as a lawyer. And then also when you're cross-examining someone, you try to figure out what's going on. You if you make a good point and you've think you've done your job, you sit down. I think those are just lessons you learn by experience. And so when you're watching students at the the NAC, a lot of times are your younger associates four or fifth year out, there may be some honor students, and I think that's just a perfect opportunity to kind of learn by trial and error. I mean, that's kind of the the purpose of these kind of exercises.

SPEAKER_01 7:36

So Right, right. It's no teacher like experience to from your your experience. So Well There's a lot you can simulate, but like you said, thinking on your feet and reacting in the moment, it's very hard to simulate that. But at the same time, there's so many uh skills when it comes to cross-examination, when it comes to foundation of evidence, when it comes to just the call and response of being in a courtroom that I think can be simulated and will set the right foundation for for trial lawyers so that when you know the witness completely turns on them unexpectedly or whatever the circumstances might be, you have the wherewithal to say, okay, maybe I haven't been in this exact situation before, but I've been in similar enough ones to understand how I'm going to react in the moment.

SPEAKER_00 8:30

Yeah, I think that's very helpful because you don't do a lot of simulation, especially in law school. You may have your trial ad class, you may be on the trial ad team or whatever, but there are not too many opportunities now to get that type of experience. So and so when you're faced with something that maybe you haven't faced before, if you've learned and you've thought about things, then you're going to react more effectively.

SPEAKER_01 8:54

So and Ben, we've worked together over the course of the past year for the ABA Tax Section Civil and Criminal Tax Penalties Committee. You're the chair of the criminal tax enforcement subcommittee. You've been very generous in giving opportunities to be visible within the tax section and putting lawyers like myself forward. But did you have any people when you were first joining the tax section, first becoming more involved, who did the same for you?

SPEAKER_00 9:23

Well, I would take it back further than that. I think I had people, partners that I worked with in the law firm that were willing to give me and other associates opportunities. And I think that model was really important. The judge that I clerked with, he made it very important for him to mentor um his clerks. So we would go with him to oral arguments, see the cases be argued, and then we would go out to lunch afterwards and talk about the cases and be included in that process. So I learned from a young, from a a younger attorney that these are opportunities I'm grateful for, and I need to provide those to others as I gain more experience. And then at DOJ, I mentored younger attorneys, tried to help them out in getting them experience, and I've carried that throughout since I left the government in 2017.

SPEAKER_01 10:21

You now chair the criminal tax enforcement subcommittee. What are practitioners telling you about the new structural changes at DOJ and how it's affecting their practices?

SPEAKER_00 10:32

Well, right now I think people are still trying to figure things out. I I don't know if I was on the a call with the DOJ attorney yesterday, and he was saying, because we were talking about it with him, somebody on the ground, a criminal prosecutor, and and he's mimicking what other people are saying. It's not really necessarily having a lot of impact. We've had some conversations with some higher-ups, and and I think it's I think they're seeing the value of of tax prosecutions, and and I think that things are going to continue. How that shakes out, how things work out, how things are structured, are the same policies and procedures going to be in place. I think that remains to be seen, especially with the next transition to the National Fraud Enforcement Division, which isn't the transitions in place or is occurring right now.

SPEAKER_01 11:22

So what should defense counsel watch out for and be aware of during this time?

SPEAKER_00 11:28

Well, I think that your clients may think that they may get away with whatever's going on tax related, that the criminal prosecutions are still going to be occurring and the investigations are still going to be occurring, and you need to be mindful of that as you're representing your clients, especially even if you're in a civil investigation, there could be a fraud referral, or their clients may find themselves subject to a criminal case.

SPEAKER_01 11:53

Such an important skill for clients in that very sensitive situation of an eggshell audit to have someone who really knows their stuff because one wrong turn could have very, very severe consequences. Then for those people who might be thinking about a shift from government to private practice, how was that shift for you?

SPEAKER_00 12:13

My shift was a little different because I left the market I was in. I was an assistant United States attorney in Los Angeles and decided to move back to where I was from at the time, Kansas City. So in 2017, I left LA and moved to the middle of the country and uh joined a white-collar boutique in Kansas City that was headed by one, a former United States attorney, and then a former assistant United States attorney and FBI agent. So I think that framework provided me a good transition as I moved to the government. You're working with very experienced criminal white-collar defense practitioners and seeing that mindset and uh quickly understanding that you're not representing the government anymore. It was, it reminded me of one practitioner. He it was his first week representing. He just left as being an AUSA in DC. We were in court, and that first week he stood up and acted like he was representing the government. He had to like calmly say, No, I don't I'm representing an individual now, but it's hard to kind of transition, but you you do pick it up. And it helped that I spent five years pr representing clients. And you quickly learn when you're meeting with clients, learning about their story and and learning about the issues they're facing and what's important to them that you're gonna do a job as a lawyer. So for me it wasn't as hard in Switch and has.

SPEAKER_01 13:40

It is a shift, though, from the duties of a prosecutor to the duties of a defense attorney. There's a lot more latitude as a defense attorney, and rightfully so.

SPEAKER_00 13:50

Whereas a prosecutor Yeah, you're held to higher standards.

SPEAKER_01 13:54

Of course, as it should be. Ben, as we we wrap up here, I wanted to ask you about what advice you would offer for younger attorneys, uh less experienced attorneys who may be considering a career at DOJ. Uh what advice, career lessons you've learned, would you offer to them?

SPEAKER_00 14:16

If you get the opportunity, I would take it. It it certainly is a pay cut if you're, depending on where you are, what your your legal experience is, but you can't the the things that you learn, whether you're working at the Department of Justice, working at the IRS and Chief Counsel, or some other government agency, is experience that you can rely on going forward and give you the confidence in representing your clients, especially if you want to go into litigation. There's no substitute for the experience you get, whether you're in federal district court, bankruptcy court, tax court for the exp for what you learn as a government lawyer. I just it's something that's very difficult to get just working on the defense side in private practice. So I would highly encourage you.

SPEAKER_01 15:06

Ben, where can our listeners learn more about you and about your practice? Nt-lp.com.

SPEAKER_00 15:12

Um that's the website. Also, I'm on LinkedIn. Just search for my name and you can uh reach out to Ben at nt LLP.com. Send me an email and uh happy to uh connect and answer any questions our listeners have.

SPEAKER_01 15:27

Ben, thanks for being a great guest on the show today.

SPEAKER_00 15:30

Thank you so much. Appreciate the opportunity.