Cleveland Bar Assn. v. Middleton

Citation642 N.E.2d 71,66 Ohio Misc.2d 9
Decision Date11 July 1994
Docket NumberNo. UPL-93-5,UPL-93-5
PartiesCLEVELAND BAR ASSOCIATION v. MIDDLETON et al. Ohio Board of Commissioners on the Unauthorized Practice of Law
CourtOhio Board of Commissioners on the Unauthorized Practice of Law

Robert T. Fay, Lakewood, John A. Hallbauer and Harold H. Reader, Cleveland, for relator Cleveland Bar Ass'n.

JOHN W. WADDY, Jr., Chairman.

The relator, the Cleveland Bar Association, pursuant to Gov. Bar R. VII(5), filed a complaint against the respondents, David J. Middleton, June Middleton, and Middleton & Associates, a.k.a. Middleton Associates. The complaint alleges that the respondents, who are not attorneys, search public real estate tax records in Cuyahoga County for the purpose of identifying commercial properties that might be overvalued by the county auditor. The respondents file assessment complaints in their own name with the Board of Tax Appeals ("BTA") and thereafter solicit the fee titleholder to enter into an agreement with Middleton & Associates ("Middleton"). Among other things, Middleton offers to assist the titleholder in the preparation, presentation, and/or negotiation of claims before the board of revision pursuant to a contingent fee agreement. If the fee titleholder enters into the contingent fee agreement, Middleton induces the titleholder to file an additional complaint in the taxpayer's name with the board of revision. Thereafter, respondents appear before the board of revision at a hearing to determine the fair market value of the property. Based on the foregoing, the relator seeks a determination, pursuant to Gov. Bar R. VII(8), that respondents have engaged in the unauthorized practice of law.

In their answer, the respondents acknowledge that they are not attorneys; admit searching public records in Cuyahoga County for the purpose of identifying properties that might be overvalued; admit that they use an agreement which provides for representation before the board of revision, but calls for them to engage an attorney on behalf of the titleholder for any appeals beyond the county board of revision; and deny that they have engaged in the unauthorized practice of law.

Pursuant to Gov. Bar R. VII(7)(A), a formal hearing was held on March 23, 1994. Present and participating in the hearing were John W. Waddy, Jr., Chairman, Jack R. Baker, Craig D. Barclay, Paul D. Frankel, Clark B. Weaver, and D. John Travis.

At issue in this case is the propriety of respondents' activities in connection with challenges to the valuation of real property. Challenges regarding the valuation of realty are authorized by R.C. 5715.19 and may be initiated by filling out a simple form. In that form, the complaining party notes the permanent parcel number of the subject property, what the claimed value should be, and the reason for the difference between the claimed value and the appraised value. Thereafter, a hearing is held in every case before the appropriate county board of revision. At the hearings, titleholders may be represented by attorneys. It also has been the practice in this state to have non-attorneys appear on behalf of the fee holders before boards of review. A record is made of the testimony and evidence adduced, in some counties with a court reporter, and in others in a less formal fashion, such as tape recording. The complaint is considered by the three-member board, which is composed of the county auditor, the president of the board of county commissioners, and the county treasurer. Although the board members may be lawyers, typically they are not. The sole issue to be decided by the board is the fair market value of the property. An appeal from a decision of the board of revision may be made either to the BTA pursuant to R.C. 5717.01 or to the court of common pleas pursuant to R.C. 5717.05.

In urging that the conduct of the respondents constitutes the unauthorized practice of law, the relator places principal reliance on Goodman v. Beall (1936), 130 Ohio St. 427, 5 O.O. 52, 200 N.E. 470, which involved claims processed under the Workers' Compensation Act then in effect. Relator asserts that the practice of law is involved because a record is made of the hearing before the board of revision. Relator also asserts that the practice of law is involved because constitutional challenges must be raised at the board of revision level. Therefore, argues relator, an attorney should be entrusted with the representation of taxpayers in such a hearing.

Respondents acknowledge that any representation beyond the board of revision, i.e., before the BTA or the court of common pleas, does involve the practice of law and must be done by an attorney. Respondents assert, however, that there are literally hundreds of non-attorneys appearing before boards of revision throughout the eighty-eight counties in the state of Ohio. Respondents also point out that the members of the board are not themselves attorneys, that the sole issue to be decided is a factual one, i.e., the fair market value of the property, and that requiring attorneys in all cases would transform the process into "strictly a lawyer's club." Respondents also contend that there has not been a problem with lay representation, and that if both an attorney and an appraiser were required, some taxpayers will not be able to afford to pursue certain complaints.

There is no question that the authority to govern the practice of law is reposed exclusively in the Supreme Court of Ohio. Section 2(B)(1)(g), Article IV, Ohio Constitution; Royal Indemn. Co. v. J.C. Penney Co. (1986), 27 Ohio St.3d 31, 27 OBR 447, 501 N.E.2d 617; State ex rel. Green v. Brown (1962), 173 Ohio St. 114, 18 O.O.2d 361, 180 N.E.2d 157. Nonetheless, the Supreme Court has stated that the court should not exercise its authority too rigidly that the public good suffers. Henize v. Giles (1986), 22 Ohio St.3d 213, 22 OBR 364, 490 N.E.2d 585. In keeping with this proposition, the Supreme Court has recognized that certain activities do not constitute the practice of law.

A real estate broker, for example, is not involved in the practice of law by merely filling pre-printed blank forms for the purchase of real estate. Supplying simple factual material such as the date, the price, the name of the purchaser, the location of the property, the date of giving possession, and the duration of the offer, does not require skill peculiar to one trained and experienced in the law and thus does not involve the practice of law. Gustafson v. V.C. Taylor & Sons, Inc. (1941), 138 Ohio St. 392, 20 O.O. 484, 35 N.E.2d 435. Similarly, furnishing a certification or memorandum containing a statement of the substance of documents or facts appearing on public records which affect the title to real estate, without expressing any opinion as to the legal significance of what is found or as to the validity of the title, is not the practice of law. State ex rel. Doria v. Ferguson (1945), 145 Ohio St. 12, 30 O.O. 241, 60 N.E.2d 476. Likewise, providing real property appraisals and property reports, even if legal terms of art are used, does not constitute the practice of law. Dayton Bar Assn. v. Lender's Serv., Inc. (1988), 40 Ohio St.3d 96, 532 N.E.2d 120.

The foregoing cases establish that whether a skill peculiar to one trained and experienced in the law is involved is probative of whether the practice of law is present. In assessing whether an activity requires training and experience in the law, the character of the activity must be examined. McMillen v. McCahan (C.P.1960), 83 Ohio Law Abs. 1, 11, 14 O.O.2d 221, 229, 167 N.E.2d 541, 550.

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6 cases
  • Dayton Supply & Tool Co. v. Bd. of Revision
    • United States
    • Ohio Supreme Court
    • November 29, 2006
    ...of revision—the fair market value of real estate—is not one which requires legal skill to resolve." Cleveland Bar Assn. v. Middleton (1994), 66 Ohio Misc.2d 9, 14, 642 N.E.2d 71. Further, the board of revision proceedings "are not governed by the Rules of Evidence and typically the board me......
  • Krier v. Franklin Cty. Bd. of Revision, s. 94APH05-679
    • United States
    • Ohio Court of Appeals
    • December 30, 1994
    ...opposite conclusion reached by the State Board of Commissioners on the Unauthorized Practice of Law in Cleveland Bar Assn. v. Middleton (1994), 66 Ohio Misc.2d 9, 642 N.E.2d 71. Middleton involved similar tax reduction solicitations to those found in the case sub judice. In concluding that ......
  • Middleton & Associates v. Mark R. Weiss
    • United States
    • Ohio Court of Appeals
    • June 19, 1997
    ... ... Schecter, Esq., 1510 Hanna Building, Playhouse Square, ... Cleveland, OH 44115-2001 ... For ... Defendant-Appellee: Frank E. Piscitelli, Jr., Esq., Security ... Federal Plaza, 500 E ... Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio ... St. 23, paragraph one of syllabus. See, also, Cincinnati ... Bar Assn. v. Estep (1995), 74 Ohio St.3d 172 ... Initially we note that there is no dispute that ... representation before ... ...
  • Worthington City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision
    • United States
    • Ohio Supreme Court
    • March 31, 1999
    ...portion of the decision that affirms the BTA in case Nos. 97-2423, 98-704, 98-758, and 98-984. Cleveland Bar Assn. v. Middleton (Bd.Commrs.Unauth.Prac.1994), 66 Ohio Misc.2d 9, 642 N.E.2d 71, contains a description of the process of challenging a valuation: "Challenges regarding the valuati......
  • Request a trial to view additional results

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