ISBA Files Complaint to Enjoin IDFPR Prosecution of Lawyers

On July 11, 2017, the Illinois State Bar Association filed a complaint in the Circuit Court of Cook County to enjoin the Illinois Department of Financial and Professional Regulation (“IDFPR”) from prosecuting Illinois licensed lawyers for submitting information about property values in advocating on behalf of clients in real estate tax assessment proceedings.

In April, the IDFPR initiated administrative prosecutions of two Illinois licensed lawyers, alleging that in separate proceedings each had engaged in the unlicensed practice of real estate appraisal. The lawyers had filed briefs with the Property Tax Appeals Board and the DuPage County Board of Review, respectively, advocating a reduction in the assessed value of their clients’ property. Neither lawyer purported to submit an appraisal or act as an appraiser. The IDFPR’s administrative complaints sought “cease and desist” orders against the two lawyers as well as civil penalties not to exceed $25,000 per violation. 

"Arguments based on property valuation are common in many legal fields and have long been typical of real estate tax assessment practice," said Thomas McNulty of Neal, Gerber & Eisenberg LLP, who along with Steven Pflaum is representing the ISBA in this case. "The ISBA believes that making such arguments on behalf of clients clearly constitutes the practice of law, does not entail the submission of an appraisal, and is well beyond the authority of the IDFPR to regulate."

The ISBA’s complaint is not limited to the two pending proceedings. Among other relief, the ISBA seeks a declaration that the IDFPR lacks authority to prosecute, discipline, or sanction lawyers for engaging in the practice of law by advocating on behalf of clients in real estate tax assessment proceedings. It also seeks to enjoin the IDFPR from initiating, maintaining, or threatening prosecution of lawyers for engaging in that activity.

ISBA President Hon. Russell Hartigan (ret.) said this is a critically important action for the association to take not only on behalf of its members who practice law in this field, but also for all Illinois lawyers as a means to protect the Illinois Supreme Court’s exclusive jurisdiction to regulate lawyers and the practice of law.

Posted on July 11, 2017 by Mark S. Mathewson
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Member Comments (10)

I am involved in a situation where the IDFPR is accusing an Illinois CPA of violating the Illinois appraisal statute and would like to know if anyone else is aware of similar IDFPR complaints against CPAs.

Ralph W. Heninger

Yes - they similarly went after KPMG - there is a decision summary from December of 2013 on the IDFPR's website. I never FOIA'd the formal consent decree.

IDFPR also went after some (non-attorney) tax reps - the consents were dated November of 2016.

The IDFPR is being wielded as a weapon in a turf war. The only question is whether they actually know it.

Until 2009, Illinois was a voluntary licensing state. The only people who absolutely had to be licensed were those writing reports for federally insured loans. All others could choose to be licensed or not licensed by the state.

If IDFPR is correct, a lawyer could never challenge the opinion of a professional appraiser through cross-examination or argument, since they'd be offering their own "appraisal." Any challenge by a criminal defense lawyer to the opinion of a forensic pathologist would be practicing medicine without a license.

IDFPR cannot determine the scope of the practice of law in Illinois. Only the Illinois Supreme Court has that authority.

Welcome to my ball park! The Consumer Financial Protection Bureau (CFPB) has been regulating the practice of consumer collection attorneys for years notwithstanding the Federal law which does not allow them to do so. (This is different from the Fair Debt Collection Practices Act (FDCPA)). They have fined and sued several large collection law firms. They have not alleged any consumer harm or illegal practices. They simply don't like the collection law practice and volume filings. They force consent decrees and hold them out to be law instead of going through the administrative rule making process. The ABA is joining with NARCA (National Creditors Bar Association) in Congress to seek changes. I applaud the ISBA for standing up for the practice of law!

And in the meantime, unlicensed persons are permitted to provide immigration services. In Illinois such persons don't even have to be accredited by the Board of Immigration Appeals.

According to our Illinois government, an immigration service provider can:

Give you materials, law books and forms, so that you can prepare legal documents yourself.
Give you a list of forms and legal documents.
Type or fill out forms for you IF you tell the provider what to write.
File forms in court for you IF you tell the provider what to file.
Serve legal papers on other parties.

However, under immigration regulation, the above constitutes immigration practice, specifically, giving the forms, or the list of forms and legal documents, and the auxiliary activities.

However, what form to complete depends on the specific benefit requested (family, employment, asylum, etc.) Giving a form or "list of forms" is a practice of law. Filing the forms is also practice of law, and anyone filling out forms must disclose his or her participation. Serving legal papers is the practice of law. The DHS regulations excludes only persons who fill in the blanks spaces on printed DHS forms.

8 C.F.R. Sec. 2.1 Definitions

Representation before DHS includes practice and preparation as defined in this section.

Practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS

Preparation, constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who does not hold himself or herself out as qualified in legal matters or in immigration and naturalization procedure.

The bottom of an asylum application has the following statement that the "preparer" must complete and sign:

I declare that I have prepared this application at the request of the person named in Part D, that the responses provided are based on all information of which I have knowledge, or which was provided to me by the applicant, and that the completed application was read to the applicant in his or her native language or a language he or she understands for verification before he or she signed the application in my presence. I am aware that the knowing placement of false information on the Form I-589 may also subject me to civil penalties under 8 U.S.C. 1324c and/or criminal penalties under 18 U.S.C. 1546(a).

Does the holding in Curiel v. Quinn, 38 N.E.3d 159 )Ill. App. 2015) come into play here?

Cudoos to the ISBA for the vigilant protection of what is clearly the practice of law.

What is IDFPR's motive here? Just to defend appraisers?

This kind of action by the ISBA gives me confidence that members' dues are being wisely spent on protecting our profession rather than on other causes with only a tangential relationship to practicing law.

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