Dayton Supply & Tool Co. v. Bd. of Revision

• Decision Date: 29 November 2006
• Docket Number: No. 2005-1464.,2005-1464.
• Citation: 111 Ohio St.3d 367,2006 Ohio 5852,856 N.E.2d 926
• Parties: DAYTON SUPPLY & TOOL COMPANY, INC., Appellant, v. MONTGOMERY COUNTY BOARD OF REVISION et al., Appellees.
• Court: Ohio Supreme Court

856 N.E.2d 926

111 Ohio St.3d 367

2006-Ohio-5852

DAYTON SUPPLY & TOOL COMPANY, INC., Appellant, v. MONTGOMERY COUNTY BOARD OF REVISION et al., Appellees.

No. 2005-1464.

Supreme Court of Ohio.

Submitted February 22, 2006.

Decided November 29, 2006.

Coolidge, Wall, Womsley & Lombard and Merle F. Wilberding, Dayton, for appellant.

David C. DiMuzio, Inc. and David C. DiMuzio, for appellee Dayton School District.

LUNDBERG STRATTON, J.

I. Introduction

{¶ 1} The issue before us is whether a nonattorney corporate officer who prepares and files a complaint with a board of revision on behalf of the corporation engages in the unauthorized practice of law. Relying on our holding in Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997), 78 Ohio St.3d 479, 678 N.E.2d 932, the Board of Tax Appeals ("BTA") held that a corporate officer for Dayton Supply & Tool Co., Inc. had engaged in the unauthorized practice of law by preparing and filing a complaint with the board of revision on the corporation's behalf, and therefore, the board of revision lacked jurisdiction to consider the complaint.

{¶ 2} The general rule is that a layperson cannot engage in the practice of law. However, public-interest factors persuade us to hold that a corporate officer does not engage in the unauthorized practice of law by preparing and filing a complaint and presenting the claimed value of the property at a hearing before the board of revision on behalf of his or her corporation, so long as the officer does not make legal arguments, examine witnesses, or undertake other tasks that can be performed only by an attorney. In the instant case, we find that the corporate officer's conduct falls within these boundaries. Accordingly, we reverse the decision of the BTA.

II. Facts

{¶ 3} Dwight Woessner is the owner and executive vice-president of appellant, Dayton Supply & Tool Company, Inc., which owns a parking lot on Monument Avenue, parcel No. R72-7-4-1. For tax year 2002, the Montgomery County Auditor determined that the market value of this parcel was $786,140. Woessner prepared and filed a valuation complaint with the Montgomery County Board of Revision ("BOR"), alleging that the market value of the parking lot was $103,860. The Dayton Board of Education filed a countercomplaint, alleging that the county should maintain the auditor's value of $786,140.

{¶ 4} Woessner appeared on behalf of Dayton Supply & Tool at the hearing and testified that the market value of the property was $103,860, the amount determined by the auditor for the previous tax year. Woessner did not present any evidence, examine any witnesses, or make any legal arguments. The board of education argued that the BOR should retain the auditor's value of $786,140. On October 31, 2003, the BOR issued a decision finding that the value of the parcel was $786,140.

{¶ 5} Dayton Supply & Tool appealed to the BTA. The BTA remanded the case to the BOR with instructions to dismiss the complaint and retain the auditor's value because Woessner had engaged in the unauthorized practice of law by preparing and filing the complaint with the BOR, thereby depriving the BOR of jurisdiction to hear the complaint pursuant to Sharon Village Ltd., 78 Ohio St.3d 479, 678 N.E.2d 932.

{¶ 6} This cause is now before the court upon an appeal of right.

III. Regulating the Practice of Law

{¶ 7} Under the Ohio Constitution, this court has "original jurisdiction" regarding "[a]dmission to the practice of law the discipline of persons so admitted, and all other matters relating to the practice of law." Section 2(B)(1)(g), Article IV, Ohio Constitution. Thus, this court has the authority to "prescribe rules governing practice and procedure in all courts of the state." Section 5(B), Article IV, Ohio Constitution. Pursuant to this authority, we have adopted a rule prohibiting the unauthorized practice of law, which is defined as "the rendering of legal services for another by any person not admitted to practice in Ohio * * *." Gov.Bar R. VII(2)(A). "The practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650, at paragraph one of the syllabus. The premise behind the rule prohibiting the unauthorized practice of law is that "limiting the practice of law to licensed attorneys is generally necessary to protect the public against incompetence, divided loyalties, and other attendant evils that are often associated with unskilled representation." Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 40.

{¶ 8} However, on occasion we have carved out narrow exceptions to this rule and have permitted laypersons to undertake some activities in administrative proceedings even though they may fall within the broad definition of the practice of law. For example, in Henize v. Giles (1986), 22 Ohio St.3d 213, 22 OBR 364, 490 N.E.2d 585, we held that laypersons representing claimants before the Unemployment Compensation Board of Review and the Bureau of Employment Services do not engage in the unauthorized practice of law. In Henize, we recognized that the two agencies are not bound by the Rules of Evidence or Civil Procedure, and the hearings are informal. We also determined that "attorneys are simply not required in most of these claim reviews" because "in most instances, a formal presentation of legal argument is not needed." Id. at 217, 22 OBR 364, 490 N.E.2d 585. We recognized that permitting nonattorneys to present a case before these agencies is technically permitting the practice of law, but we concluded that "[t]he finding is inescapable that because of the character of the proceedings in light of the interest at stake, lay representation does not pose a hazard to the public in this limited setting." Id. at 219, 22 OBR 364, 490 N.E.2d 585.

{¶ 9} However, we cautioned that "[o]ur decision today does not reach nor permit the rendering of legal advice regarding unemployment compensation laws or board orders. Rather, our narrow holding merely permits lay representation of parties to assist in the preparation and presentation of their cause in order to facilitate the hearing process." Id.

{¶ 10} We further refined this exception in Cleveland Bar Assn. v. CompManagement, 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, wherein nonlawyer members of an actuarial firm represented employers in workers' compensation claims heard by the Industrial Commission. The Cleveland Bar Association filed a complaint alleging that these representatives were engaging in the unauthorized practice of law. Specifically, the bar association alleged that the representatives appeared at oral hearings; examined witnesses; interpreted the law; interpreted the nature, weight, and credibility of the evidence; and prepared, signed, and filed various legal documents. Id. at ¶ 2-3.

{¶ 11} We recognized that from its inception, one of the objectives of the workers' compensation system was to provide a remedy to injured workers without requiring them to hire an attorney or file a lawsuit. Id. at ¶ 12, citing Mabley & Carew Co. v. Lee (1934), 129 Ohio St. 69, 74-75, 1 O.O. 366, 193 N.E. 745. Thus, lay representation has been an integral part of the workers' compensation system from the beginning. To that end, the Industrial Commission adopted Resolution R04-1-01, which permits laypersons to (1) investigate and discuss the facts of a claim, (2) assist in the filing and administration of a claim and file appeals, (3) attend hearings, (4) complete and submit various records and reports regarding injured workers, (5) complete and submit records and reports regarding job classifications, (6) complete and submit reports regarding premiums, (7) file protests with the bureau, (8) prepare reports regarding status of risks, and (9) advise employers and injured workers to seek legal representation. Id. at ¶ 18-29.

{¶ 12} However, the resolution also does not allow laypersons to (1) examine or cross-examine witnesses, (2) cite or interpret the law, (3) make or give legal interpretations regarding testimony, etc., (4) comment upon evidence regarding its credibility, weight, etc., (5) provide legal advice, (6) give or render a legal opinion, or (7) provide stand-alone representation for a fee. Id. at ¶ 30-36.

{¶ 13} We recognized in our previous holdings that within the workers' compensation system, laypersons could not represent clients for a contingent fee, advise clients of the legal ramifications of commission orders, or prepare a record. CompManagement, 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 55. Yet we found that these holdings do "not prohibit lay representation before the Industrial Commission, but instead mark the outer boundaries of permissible lay conduct." Id. at ¶ 69. We further determined that "there are multiple interests to consider in determining whether a particular legal activity is acceptably performed by nonlawyers. In this way, we can freely assume that all representative conduct at the administrative level falls within the broad definition of the practice of law, yet still authorize lay representatives to perform certain functions in the administrative setting when the public interest so demands." Id.

{¶ 14} In CompManagement, we were compelled by "public interest" factors to permit lay representatives to participate in workers' compensation claims to the extent that their "representation" was consistent with the functions outlined in the commission's resolution. Id. at ¶ 70. We reasoned...