88 Ohio St. 3d 574 | Ohio | 2000
Lead Opinion
We hold that the BTA correctly remanded this cause to the board of revision for dismissal.
In Sharon Village, at the syllabus, we held that “[t]he preparation and filing of a complaint with a board of revision on behalf of a taxpayer constitute the practice of law.” We now hold that a non-attorney operating under a power of attorney engages in the unauthorized practice law when he prepares and files a complaint with a board of revision on behalf of a taxpayer.
Recently, in Disciplinary Counsel v. Coleman (2000), 88 Ohio St.3d 155, 724 N.E.2d 402, an unauthorized practice of law case, we ruled that obtaining a power of attorney from a principal does not insulate a non-attorney from violating the unauthorized practice of law statutes when the non-attorney performs a legal act in representing the principal.
First, we observed that holders of powers of attorney “have historically not been considered attorneys who can appear in the courts. * * * An ‘attorney-in-fact’ has been consistently distinguished from an ‘attorney at law’ or ‘public attorney’ since at least 1402 when certain attorneys in England were examined by Justices and ‘their names be entered on the roll’ of those permitted to practice in the courts. 1 The Oxford English Dictionary (2 Ed.1989) 772. Thus, a person holding a power of attorney, but whose name is not entered on the roll, is an attorney-in-fact, but not an attorney at law permitted to practice in the courts.”
We next explained that we have authority under Section 2(B)(1)(g), Article IV of the Ohio Constitution “over all matters relating to the practice of law. * * * If accepted, respondent’s argument that a person may execute a power of attorney and so enable the grantee to practice law in Ohio would render meaningless the supervisory control of the practice of law given to us by the Ohio Constitution.”
Third, we concluded that using a power of attorney “as a contract to represent another in court violates the laws of Ohio.” We explained that R.C. 4705.01 “recognizes that a.person has the inherent right to proceed pro se in any court. But it also prohibits a person from representing another by commencing, conducting, or defending any action or proceeding in which the person is not a party. When a person not admitted to the bar attempts to represent another in court on the basis of a power of attorney assigning pro se rights, he is in violation
Under Coleman, Dorn engaged in the unauthorized practice of law, and, under Sharon Village, the BTA correctly dismissed the complaint Dorn filed on behalf of Fravel.
Accordingly, we hold that the BTA’s decision is reasonable and lawful, and we affirm it.
Decision affirmed.
Dissenting Opinion
dissenting. This case presents an example of an opinion of this court being taken to an illogical extreme. My vote in Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997), 78 Ohio St.3d 479, 678 N.E.2d 932, was based on the facts of that case — a third-party agent, unrelated to the entities seeking revisions, filed applications with the Licking County Board of Revision. I saw that decision as one affecting freelancers soliciting and filing applications for revision without having a real relationship with the taxpayer. I considered that practice to be potentially harmful to taxpayers.
With this case, we have finally reached the level of reductio ad absurdum regarding Sharon Village. Here, Frieda Fravel has given Dorn the legal power to step into her shoes. He is operating as Frieda Fravel, not merely on her behalf. By all accounts, this is a loving relative, trusted to take control of Fravel’s estate, doing what is clearly in the best interest of the estate. This does not come close to involving the perceived perils involved with Sharon Village. I accordingly dissent, and would urge this court to take this opportunity to clearly delineate what Sharon Village truly means.
