January 20, 2022
By: Matthew Boyd
Tax litigators often look at their careers compared to other lawyers and say “with tax law all that is at stake is money.” On the surface, this appears to be true because tax is about money, unlike criminal law where someone’s freedom can be at issue. However, it is important to acknowledge while tax is about money, it can be more than that to a client and we as tax lawyers need to be prepared for situations where a client’s mental health is at issue.
The importance of how a tax debt can impact a client was recently highlighted in a meeting I had. I was assisting an older client who was of ailing health and owed a substantial amount of money to the CRA. In the meeting, the client expressed to me if the approach we were taking didn’t work out, they would take their life. In the moment, I empathized with them, outlining how I understood how they were feeling, outlined all the pressures they had and expressed how it is understandable they were feeling like they didn’t have options. I went on to share a time in my life where I was under intense pressure and how I navigated that period of my life. I asked if they have access to professional help and have utilized it given the pressures they were experiencing. Eventually, the client acknowledged they would reach out to a resource they had available, but after the conversation, I found myself unsure if I did everything I could. Where had my responsibilities begun and ceased as a lawyer? Was the approach I took in comforting the client appropriate?
After the meeting, it was clear there may be an issue of confidentiality that could arise depending upon the outcome of the client’s matter. Reviewing the rules regarding a lawyer’s ability to breach confidentiality it became clear I could not do so at this time as the Rules of Professional Conduct permit a lawyer to breach confidentiality “when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm” While there was a threat of serious bodily harm, it was not imminent so I was bound by confidentiality.
I then sought guidance from some of my mentors and was given an excellent piece of advice. In moments like this, we as lawyers could look to other professions, mainly the medical profession, on how to approach these difficult situations. In the medical field, it is taught that one should approach a difficult situation from a place of empathy, but not sympathy.
The difference between empathy and sympathy is subtle. Empathy is the understanding and identification of another person’s situation whereas sympathy is the feeling of pity or sorrow for someone’s situation. It is taught empathy is immersing yourself in another person’s situation without making the situation about you. For example, expressing that the individual is not alone, many people struggle with their circumstances as well, or how they are feeling is normal without bringing up your personal experiences. This allows the emphatic person to remain outside of the problem but provide support through an expression of understanding.
In contrast, sympathy will often involve becoming involved with the problem. It is advised this can be patronizing, as we often want to express we have gone through similar situations, but this approach can minimize the client’s situation or isolate them if not done correctly. A sympathetic approach is therefore not advisable due to the potential to isolate the client.
While the distinction between empathy and sympathy is subtle, the objective nature of empathy, as opposed to sympathy, allows for better support without the risk of minimizing the circumstances of an individual. By maintaining an approach that favours empathy over sympathy with distressed clients, we can build a better rapport and hopefully guide them towards a solution.
 Rules of Professional Conduct, at Chapter 3.3-3.
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The above article was first published in the Tax Section of the Ontario Bar Association Website.