June 2013 • Volume 101 • Number 6 • Page 278
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Lake County bans nonlawyer representatives at tax appeals board
Lake is the latest Illinois county to confront UPL by prohibiting nonlawyers from representing parties before the tax appeals board of review.
Lake County has become the twelfth county in Illinois to adopt procedural rules that expressly prohibit nonlawyers from representing parties before its tax appeals board of review.
The growing trend of counties banning the unauthorized practice of law ("UPL") in their tax appeal boards is in accord with Illinois Supreme Court precedent dating back at least as early as 1987. Lacking any state statute that addresses the issue, the implementation of local UPL rules for tax appeals boards has been officially supported by the ISBA Board of Governors since 1992.
In a letter earlier this year to the Lake County BOR, ISBA President John E. Thies wrote that, for several decades, nonlawyers have assisted taxpayers in efforts to reduce property tax liability by preparing, filing, and prosecuting complaints before local tax appeal boards.
"Nonlawyers argue that such prohibited activities should be permitted due to concerns regarding consumer access to representation, competition in the market, the fact that the conduct has been adopted by some boards of review, the supposed simplicity and non-adversarial nature of proceedings before the Board, and the practices that have been adopted in other states," Thies wrote. However, the "unbroken line of [prior court decisions] in Illinois has met and steadfastly rejected these arguments."
Some 26 years ago, the supreme court heard a case in which a non-lawyer and his secretary assisted a taxpayer by preparing paperwork filed with, and attending hearings before, a local tax appeals board. Although no statute prohibited that practice, the court held that, under common-law doctrines, "[b]oth the unsupervised completion of the complaint and the appearances before the administrative tribunal constituted the unauthorized practice of law." In re Yamaguchi, 118 Ill.2d 417, 426, 515 N.E.2d 1235, 1239 (1987).
ISBA opinion: lay representation is UPL
Five years after the Yamaguchi decision, the ISBA Board of Governors unanimously adopted the opinion that lay persons and organizations representing taxpayers before a board of review are committing the unauthorized practice of law, and "[p]roceedings instituted by such persons or organizations may be meaningless or voidable."
According to the written opinion and findings of the ISBA Joint Committee on Real Estate Taxation Practices, which the Board of Governors adopted in 1992, nonlawyers were performing several services on behalf of taxpayers that constituted the unauthorized practice of law. The joint committee summarized those practices in three categories.
First, nonlawyers such as tax and property-valuation consultants were "filing valuation complaints on behalf of taxpayers and appearing before assessors and boards as taxpayers' representatives."
Second, corporations and organizations, including nonattorney partnerships and professional services corporations, were actively advertising those kinds of services and were performing them on behalf of taxpayers during official board of review proceedings.
Finally, other persons and entities were, for a fee, offering to train others as property tax valuation "consultants" who were purportedly - but not legally - authorized to perform these kinds of legal services on behalf of taxpayers.
Relying on the Yamaguchi decision, the joint committee found that "[t]here is a distinction between the appraisal of property, the service as an expert witness on valuation, and the representation of a property owner in seeking adjustment or protest of property taxation.…[T]he completion of a tax valuation complaint by a real estate agent before a board of appeals constitutes the unauthorized practice of law. The appearance of a non-attorney for oral argument before a board of appeals hearing a valuation complaint also constitutes the unauthorized practice of law. Such proceedings, instituted by non-attorneys or non-licensed attorneys, are void and/or may be voidable."
The committee further cautioned that any directives by supervisors, assessors or boards of review purporting to grant such powers of representation to non-lawyers is beyond the authority of such persons and boards.
"Where the practice of law is involved, the judicial department, through the Supreme Court, has exclusive supervisory authority. …Individual non-corporate property owners may, by statute and common law, represent themselves pro se. However, a non-attorney may not properly represent another in any proceeding or process described herein," the committee wrote.
It also stated that the prohibitions against the unauthorized practice of law exist to protect the public and predate most modern consumer-protection laws. "It is the obligation of the attorneys to exercise diligence in protecting the public. Protection of the public requires that only licensed attorneys provide legal services to the public."
For the court, not the legislature, to decide
Thomas Cooprider, chairman of the Lake County Board of Review, said that his board "has reviewed this issue for many months, deliberated it in public meetings on multiple occasions, and heard testimony from all parties. The BOR changed its rules clarifying that individual taxpayers may represent themselves, or retain a licensed attorney to represent them before the Board." (See the ISBA's Illinois Lawyer NOW blog, 3/18/2013.)
The new rules in Lake County, which closely resemble those in at least 11 other counties throughout the state, allow non-attorneys like real estate brokers, appraisers, architects and CPAs to continue serving as expert witnesses in assessment appeals, but they will no longer be allowed to file assessment complaints and appeals with the board.
Chicago-based tax attorney Thomas J. McNulty, who is a member of the ISBA State and Local Taxation Section Council, said the new rules in Lake and other counties are important because they clarify for the public exactly who can and cannot render legal services in tax-appeal proceedings. However, he cautioned both taxpayers and local governments that they must follow the supreme court's interpretation of the laws even if they live in a county in which these rules have not been codified or enforced by the local boards of review.
"In Illinois, the supreme court has the exclusive power to determine how the practice of law is parsed out," McNulty said. "Yamaguchi should be the rule, until it isn't. It's a question of public policy that should be determined by the court … not by the General Assembly because the Illinois Constitution puts these determinations in the hands of the court."