ATTORNEYS FOR APPELLANT
Steven C. Shockley
Maggie L. Smith
Mitchell R. Heppenheimer
South Bend, Indiana
ATTORNEY FOR APPELLEE
Jon R. Pactor
NATIONAL COUNCIL OF
Alice McKenzie Morical
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). )
June 26, 2002
This case is an original action brought by the Indiana State Bar Association
(ISBA), pursuant to Admission and Discipline Rule 24.
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. ISBAs 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, ISBAs request for injunctive relief is denied
without prejudice to ISBAs ability to renew its request in the event the
Boards current rules are not followed.
For some time, the Boards 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 Assn v. State Bd. of Tax
Commrs, 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
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 OConnor, Judge of the Shelby
Circuit Court, as Commissioner to conduct a fact-finding hearing. On August 28,
2001, Judge OConnor 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
measure a propertys 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 assessors 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 reviews
determination and Board regulations, spoke with a Hoogenboom representative, and compiled an Assessment
Review and Analysis containing the evidence Miller intended to present.
Millers 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 Millers arguments and determined that the assessment was correct. Hoogenboom
attempted to appeal the Boards determination to the Tax Court, but that appeal
proved unsuccessful in part due to Millers failure to place certain responses to
interrogatories into the record at the Board hearing.
Hoogenboom-Nofzinger v. State Bd.
of Tax Commrs, 715 N.E.2d 1018, 1023 n.2 (Ind. Tax Ct. 1999).
ISBA contends that Millers 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 Hoogenbooms 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 Boards rules that were proposed after ISBAs 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
(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.
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 ISBAs concerns about Millers 1996 representation of Hoogenboom.
We noted in ISBAs 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 Boards 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 Millers 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 petitioners 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 OConnor, who acted as our hearing officer in this matter,
the Court declares itself satisfied that respondent M. Drew Miller practiced law without
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.
Millers decision to practice law without a license was not a victimless crime.
By the time the clients appeal reached the Indiana Tax Court, it
became apparent that the clients 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 Commrs, 715 N.E.2d 1018, 1023 n.3, 1024
n.4 (Ind. Tax 1999) (describing points lost to client by Millers representation).
As the Court says, the clients appeal proved unsuccessful in part due to
Millers 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 Boards 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.
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 . . . .
Footnote: An ad valorem tax is [a] tax imposed proportionally on the value
of something . . . , rather than on its quantity or some
other measure. Blacks Law Dictionary 1469 (7th ed. 1999).