IRS new logoThe IRS first began searching for conservative groups in March 2010. The IRS has continued to target conservatives even in the last few months. Stunningly, the IRS’s illegal behavior did not stop when Obama first addressed it and promised that it would stop and that those responsible would be held accountable. 

A scandal surrounding the Internal Revenue Service’s targeting of conservative groups might soon start hitting taxpayers in the wallet.

The Justice Department has hired two law firms here to represent the personal interests of 19 Internal Revenue Service workers in a federal lawsuit filed against the agency and its employees because of this year’s targeting scandal, The Cincinnati Enquirer has learned. The government has contracted with the firms of Taft Stettinius & Hollister LLP and Squire Sanders LLP for up to $200 an hour plus expenses.

The federal government often pays for personal representation of its employees, experts say.

“No one would be willing to take these jobs at places like the IRS if the government wasn’t willing to help protect them from legal suits like this,” said Donald Tobin, a law professor at Ohio State University and a former lawyer with the Justice Department. “While it doesn’t happen a lot that the government contracts with private counsel, in these kinds of cases, they almost have to.”

Justice Department officials confirmed the contracts with the two firms here, saying that it is common for those who face lawsuits “arising out of their employment.”

Official Justice Department policy limits the amounts paid to an lawyer with five years or more experience at $200 per hour, and it caps billable time to 120 hours a month unless a pressing need arises for more and the lawyer in question makes a request for the additional hours in writing ahead of time. Lawyers with fewer than five years experience receive less per hour on a sliding scale.

In May, the NorCal Tea Party Patriots of Auburn, Calif., sued the IRS in U.S. District Court here, saying the agency unfairly targeted the group for extra screening as part of its application for tax-exempt status. The agency earlier this year acknowledged the practice, saying it was a way to identify and process more quickly the applications for nonprofit status by a growing number of political groups.

“Under pain of denial of tax-exempt status, the IRS and its agents singled out groups like NorCal Tea Party Patriots for intensive and intrusive scrutiny, probing their members’ associates, speech, activities, and beliefs,” the lawsuit states. “NorCal and its members suffered years of delay and expense while awaiting the exemption and spending valuable time and money answering the IRS’s questions. The result was a muffling and muzzling of free expression.”

Plaintiffs expanded the lawsuit in August to include nine more conservative groups from around the country. Lawyers filed for class-action status, a way to represent anyone who might have been targeted nationally.

The suit also named 19 individual IRS workers. It was the first of what became several suits against the agency’s practices in the past few years although none of the other suits has progressed to court appearances or follow-up filings.

Justice Department lawyers already have filed a motion to dismiss with U.S. District Court Judge Susan Dlott, and a similar motion is expected from the individuals’ lawyers by mid-November.

The action names individuals in both their official and personal capacities. That could lead to a conflict of interest if the government’s case were to hinge on the actions of an individual outside of work. So outside counsel is needed to represent the interests of the workers outside of the agency. And federal court rules require that someone registered in the specific state also be present.

“In a situation like this, there can be a lot of finger pointing going on … especially if someone accuses another person of acting outside their official capacity and in a personal capacity,” said Phillip Sparkes, the director of the Local Government Law Center for the Chase School of Law at Northern Kentucky University in the Cincinnati suburb of Highland Heights, Ky. “So it’s best for the government’s lawyers to represent the IRS, and the individuals’ attorneys represent their interests.”

While the government may be picking up the tab for this work, Sparkes said they have no say in the actual representation of the individuals.

“It’s like when a parent pays for the legal bills of their child,” he said. “The attorney represents the child with no interference from the parent from then on.”

Local counsel includes Thomas Zeno of the Cincinnati office of Squire Sanders, an international law firm founded in Cleveland. He is representing a group of seven workers, most of whom are based in Cincinnati. His list includes Washington supervisor Carter Hull, a noted figure in the controversy.

The other local lawyer is Mark Hayden of Taft, who is representing 11 workers. Most are or were supervisors in Washington.

Among Hayden’s clients is former IRS official Lois Lerner, who recently retired from the agency. Many House Republicans said Lerner was one of those at the heart of the controversy, and although she said she had done nothing wrong, she invoked her right against self-incrimination when she appeared before Congress earlier this year.

William Taylor III, who represented Lerner during her congressional appearance, did not return calls seeking comment.

The plaintiffs’ lawyers include Todd Graves and Edward Greim of the Kansas City, Mo.-based firm Graves Garrett LLC. Greim said his firm is being paid by another California-based conservative group, Citizens for Self-Reliance, which has ties to NorCal Tea Party Patriots.

“We feel that it’s pretty much been established that this conduct took place, and it will be interesting to see what the defense comes up with to justify it,” Greim said. “We also know that people in Washington were helping control this, and we’re hoping to find out how high up it goes.”

“We feel that it’s pretty much been established that this conduct took place, and it will be interesting to see what the defense comes up with to justify it,” said Greim.

As for how much the case might cost, experts say it could, if allowed to proceed, involve hundreds of hours of research and work given the amount of paperwork involved.

“The political overtones of this case will probably make it more complex than your routine suit against the IRS, so who knows how long it could drag on,” Sparkes said.

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James Pilcher wrote this op-ed article which was published in USAToday

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