ATTORNEYS FOR APPELLANT
Steven C. Shockley
Maggie L. Smith
Indianapolis, Indiana
Mitchell R. Heppenheimer
South Bend, Indiana
ATTORNEY FOR APPELLEE
Jon R. Pactor
Indianapolis, Indiana
AMICUS CURIAE
NATIONAL COUNCIL OF
PROPERTY TAXATION
Alice McKenzie Morical
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
STATE EX REL. INDIANA STATE )
BAR ASSOCIATION, )
)
Appellant (Relator Below), )
) Indiana Supreme Court
v. ) Cause No. 94S00-0001-MS-40
)
M. DREW MILLER, )
)
Appellee (Respondent Below). )
__________________________________________________________________
ORIGINAL ACTION
__________________________________________________________________
June 26, 2002
BOEHM, Justice.
This case is an original action brought by the Indiana State Bar
Association (“ISBA”), pursuant to Admission and Discipline Rule 24.[1] ISBA
contends that in 1996 M. Drew Miller, who is not an attorney, engaged in
the unauthorized practice of law when he represented a taxpayer in a
property tax appeal before the State Board of Tax Commissioners. Since
that time, the Board has promulgated rules that clearly distinguish the
roles of a “tax representative” and an attorney. A “tax representative” is
limited in the services he or she may perform before the Board, and those
services do not include acts that by themselves constitute the practice of
law. ISBA’s requested relief is an injunction against Miller permanently
enjoining him from representing taxpayers before the Board. Compliance
with the new rules established by the Board will avoid unlicensed practice
of law. For that reason, ISBA’s request for injunctive relief is denied
without prejudice to ISBA’s ability to renew its request in the event the
Board’s current rules are not followed.
For some time, the Board’s rule on non-attorney representation
essentially permitted any person to represent taxpayers in proceedings
before the Board. Ind. Admin. Code tit. 50, r. 4.2-1-7 (1996). In 1997,
the General Assembly directed the Board to promulgate rules regulating the
practice of representatives in proceedings before it. Ind. Code § 6-1.1-31-
11 (1998). The Board published a draft rule in response. Although the
rule established educational and certification requirements, it still
permitted non-attorneys to represent taxpayers in any aspect of a tax
appeal before the Board. 21 Ind. Reg. 4241 (August 1, 1998). ISBA filed
suit under Rule 24 to enjoin the implementation of the proposed rule,
contending that representing taxpayers before the Board constituted the
practice of law.
This Court dismissed the first suit on two grounds: (1) ISBA had not
alleged specific acts constituting the unauthorized practice of law, as
Rule 24 requires; and (2) the Board and ISBA had negotiated to develop a
new set of rules that would expressly prohibit the practice of law before
the Board. State ex rel. Ind. State Bar Ass’n v. State Bd. of Tax Comm’rs,
714 N.E.2d 128, 129 (Ind. 1999). The dismissal was without prejudice to
ISBA, and expressly provided that “ISBA [may] commence a new action should
the rules actually adopted substantially deviate from those the Court has
reviewed, or should the ISBA seek to enjoin a person, persons, or entity
from specific acts constituting the unauthorized practice of law before the
Board.” Id. at 131.
ISBA filed a second petition under Rule 24 to enjoin Miller from
engaging in the practice of law based on his 1996 representation of
Hoogenboom-Nofziger, a real estate development company, in an appeal before
the Board. On September 19, 2000, this Court appointed the Honorable
Charles O’Connor, Judge of the Shelby Circuit Court, as Commissioner to
conduct a fact-finding hearing. On August 28, 2001, Judge O’Connor issued
his findings of fact. The case is now before this Court for resolution.
On July 11, 1992, Hoogenboom contracted with Landmark Appraisals, Inc.
to challenge the assessed valuation of several of its properties. The
contract provided that Landmark would research, examine, and evaluate the
properties to determine whether the assessed value was excessive and, if
so, seek a reduction where such an attempt was warranted. Landmark was to
be compensated in the amount of fifty percent of any tax savings.
Miller is the sole shareholder in Landmark and carried the title of
“Valuation Director” for Landmark. He holds a Bachelor of Arts degree from
Anderson College, where he majored in accounting and business management.
In 1997, he received Level I Indiana Assessor-Appraiser certification from
the Board and, in 1998, received Level II certification. He has taken
several appraisal courses through the American Society of Appraisers, and
has been certified in real property/ad valorem[2] appraisals, which measure
a property’s market value. Miller is not an attorney and has never held
himself out as such. He is not trained in interpreting or applying
statutes or case law, nor is he trained in identifying, gathering, or
introducing admissible evidence, in examining or cross-examining witnesses,
or in applying techniques of advocacy in adversarial proceedings.
In May 1996, Miller, acting for Landmark, represented Hoogenboom
before the Board, challenging the township assessor’s valuation for an
office building owned by Hoogenboom. The assessor assigned the property a
grade of C-1, an obsolescence depreciation factor of zero percent, and a
physical depreciation factor of twenty-five percent. The county board of
review upheld the assessment. To prepare for the appeal hearing before the
Board, Miller inspected the property, reviewed the county board of review’s
determination and Board regulations, spoke with a Hoogenboom
representative, and compiled an Assessment Review and Analysis containing
the evidence Miller intended to present.
Miller’s arguments before the Board contained four separate challenges
to the assessment: (1) a constitutional challenge based on Article X,
Section 1 of the Indiana Constitution; (2) a challenge that the
obsolescence depreciation factor was too low; (3) a challenge that the
grade of C-1 was improperly assigned to the property; and (4) a challenge
that the physical depreciation factor was too low. We agree that the first
challenge clearly involved questions of law. ISBA contends the remaining
three issues also required the analysis of case law because Board
regulations did not fully explain the evidence necessary to prove those
factors and interpretation of Indiana Tax Court opinions was required. The
Board ultimately rejected all of Miller’s arguments and determined that the
assessment was correct. Hoogenboom attempted to appeal the Board’s
determination to the Tax Court, but that appeal proved unsuccessful in part
due to Miller’s failure to place certain responses to interrogatories into
the record at the Board hearing. Hoogenboom-Nofzinger v. State Bd. of Tax
Comm’rs, 715 N.E.2d 1018, 1023 n.2 (Ind. Tax Ct. 1999).
ISBA contends that Miller’s conduct amounted to the practice of law,
and we are inclined to agree, at least as to the constitutional claim and
where the preservation of issues for appeal was at stake. We are not
convinced that turning to court opinions to answer the questions of what
constitutes obsolescence or depreciation, for example, constitutes the
practice of law. Many non-lawyers are as qualified, if not more so, than
most lawyers in the understanding of those terms. Even if a court opinion
has elucidated those terms, their use does not necessarily constitute
practicing law. Cf. State ex rel. Pearson v. Gould, 437 N.E.2d 41, 43
(Ind. 1982) (representation requiring only the use of general knowledge
regarding the legal consequences involved does not constitute the practice
of law). In any event, as Hoogenboom’s failed appeal in the Tax Court
demonstrated, to adequately represent Hoogenboom, Miller was required to
perform tasks amounting to the practice of law.
Although the Board’s rules that were proposed after ISBA’s initial
attempt to enjoin non-attorneys from practicing before the Board were not
in effect as of the Hoogenboom appeal, they are now in effect. See I.A.C.
50-15-5 (2001). I.A.C. 50-15-5-5 defines a “tax representative” as “a
person who represents another person at a proceeding before the property
tax assessment board of appeals, the division of appeals, or the Board.”
Attorneys are explicitly exempted from that definition and may provide a
full range of services before those bodies. “Tax representatives,”
however, must be certified by the Board, and may not practice before the
Board in:
(1) matters relating to real and personal property exemptions claimed
on a Form 132 or 136 [exemptions for property used for educational,
fraternal, literary, charitable or scientific purposes];
(2) claims that assessments or taxes are “illegal as a matter of law”
. . .;
(3) claims regarding the constitutionality of an assessment; or
(4) any other representation that involves the practice of law.
IAC 50-15-5-2. “Tax representatives” must meet certain training
requirements, which include being a certified Level II assessor-appraiser
and completing educational course requirements of all rules adopted by the
Board related to procedures for practice. Id. Additionally, “tax
representatives” must inform their prospective clients in writing that they
are not attorneys, may not present legal arguments, and may not address
legal issues relating to the assessment. IAC 50-15-5-5. They must also
disclose that legal issues, if not raised properly before the property tax
assessment board of appeals, may not be raised at a later stage. Id. The
disclosure must be signed by the prospective client. Id.
These regulations appear to address ISBA’s concerns about Miller’s
1996 representation of Hoogenboom. We noted in ISBA’s earlier challenge to
non-attorney practice before the Board that “[t]he Court is of the view
that the parties, by working together, have developed proposed rules
reasonably designed to address the interests of all concerned.” 714 N.E.2d
at 131. With those proposed rules taking effect last year, our view has
not changed. We have no reason to believe Miller will not comply with the
Board’s rules. Nor can we assume that the Board itself will take no action
if it finds nonconforming representation. Accordingly, although we agree
with ISBA that Miller’s 1996 representation of Hoogenboom encompassed
several aspects of the practice of law, we do not agree that enjoining
Miller from practicing before the Board in the future is appropriate.
This cause is dismissed without prejudice.
RUCKER, J., concurs.
SULLIVAN, J., concurs in result, believing that petitioner’s complaint
seeking injunctive relief should have been dismissed at the outset of these
proceedings as failing to state a claim upon which relief can be granted.
SHEPARD, C.J., dissents with separate opinion in which DICKSON, J.,
concurs.
SHEPARD, Chief Justice, dissenting.
Like Judge Charles O’Connor, who acted as our hearing officer in this
matter, the Court declares itself satisfied that respondent M. Drew Miller
practiced law without a license.
I agree. Miller used, or attempted to use, all the tools of the
legal profession to represent a client before a state adjudicative body.
He deployed regulations and appellate court case law; he tendered evidence
and made legal argument about it; he even presented state constitutional
claims.
Miller’s decision to practice law without a license was not a
victimless crime. By the time the client’s appeal reached the Indiana Tax
Court, it became apparent that the client’s interests had been damaged
because Miller had failed to do for the client the things most licensed
lawyers would have done. Hoogenboom-Nofziger v. Bd. of Tax Comm’rs, 715
N.E.2d 1018, 1023 n.3, 1024 n.4 (Ind. Tax 1999) (describing points lost to
client by Miller’s representation). As the Court says, the client’s appeal
“proved unsuccessful in part due to Miller’s failure . . . .” Slip op. at
5.
In spite of all this, the Court renders judgment in favor of Miller.
It does so because the Board has new rules governing what non-lawyers may
do and because “[w]e have no reason to believe Miller will not comply with
the Board’s rules.” Slip op. at 7.
I see little basis for this confidence, inasmuch as Miller stands
before us today firmly asserting that he has never done anything remotely
constituting the practice of law and demanding that fees be imposed on the
Indiana State Bar Association for suggesting that he has. Someone who
refuses to recognize his violation is not a plausible risk for future
compliance, especially when he has been prosecuted once before, found
guilty, and let off scot-free.
DICKSON, J., concurs.
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[1] Rule 24 states, in part: “Original actions . . . to restrain or enjoin
the unauthorized practice of law in this state may be brought in this court
by . . . the Indiana State Bar Association or any duly authorized committee
thereof, without leave of court . . . .”
[2] An ad valorem tax is “[a] tax imposed proportionally on the value of
something . . . , rather than on its quantity or some other measure.”
Black’s Law Dictionary 1469 (7th ed. 1999).