Fravel v. Stark County Board of Revision

728 N.E.2d 393, 88 Ohio St. 3d 574

• Court: Ohio Supreme Court
• Decided: May 31, 2000
• Docket: No. 99-1010
• Status: Published

Opinions

Per Curiam.

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 of this statute. A private contract cannot be used to circumvent a statutory-prohibition based on public policy.”

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.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney and Cook, JJ., concur. Pfeifer and Lundberg Stratton, JJ., dissent.