IL Bar Assn: State overreach threatens ability of property tax lawyers to work; State: Lawyers can't be appraisers

By Jonathan Bilyk | May 31, 2018

A Cook County judge could soon weigh in on a legal fight between Illinois’ largest association of lawyers and a state regulatory agency, over the question of whether that state agency has the authority to effectively bar Illinois property tax lawyers from offering estimates of a property’s value when representing property owners before a state or county property tax appeal board.

The Illinois State Bar Association filed suit in 2017, asking a judge to declare the Illinois Department of Financial and Professional Regulation has no authority to prosecute Illinois property tax lawyers on charges they offered appraisal services without a proper state license.

Currently, the court has two dueling motions pending on the case, as each side has asked the judge to end the lawsuit with a quick ruling in their favor.

For its part, ISBA has asked the judge for summary judgment, asserting the state agency has overstepped its authority and threatens the ability of property tax attorneys to ply their trade, representing clients seeking a reduction in their property tax bills.

Thomas McNulty   Neal Gerber & Eisenberg

ISBA’s lawsuit was filed last summer after the IDFPR brought charges in April 2017 against attorneys G. Terence Bader and David Bass, allegedly for including an “opinion of value” of properties in arguments made before property tax appeal boards on behalf of clients. The IDFPR asserted this action violated Illinois state law, which restricts real estate appraisal activity solely to appraisers licensed by the state.

ISBA, however, countered the prosecutions were misplaced, as such prosecutions, whether successful or not, would impede the ability of property tax lawyers from effectively representing clients and impinge on property tax appellants rights to retain effective legal representation before a government authority.

Further, ISBA asserted the IDFPR even lacks authority to regulate attorneys in such a manner, as the practice of law in Illinois is regulated by the Illinois state Supreme Court.

ISBA filed suit to obtain a court order ending the prosecutions of the two lawyers already charged, and to thwart the ability of the state to bring further actions against any other property tax lawyers in Illinois.

ISBA reiterated those positions in briefs filed in January and March, asking the judge to grant the association summary judgment in the matter.

“Advocacy by a lawyer - especially that contained in a document entitled a ‘brief’ like the ones submitted by Messrs. Nader and Bass - constitutes legal argument rather than the expression of an opinion,” wrote ISBA’s attorney Thomas J. McNulty, of the firm of Neal Gerber & Eisenberg, of Chicago, in a brief filed with the court. “Property tax lawyers marshal the evidence and assert legal arguments regarding valuation based on that evidence, but they do not thereby offer their own opinion of value as evidence. The ‘opinion of value’ contained in an appraisal under the Appraisal Act, on the other hand, constitutes evidence rather than legal argument.

“It is axiomatic that opinions are a type of evidence. It is equally fundamental that argument by a lawyer does not constitute evidence.”

In its arguments, ISBA has repeatedly asserted the work of property tax attorneys hired to represent clients before property tax review boards is fundamentally different from that of appraisers. While Illinois state law expects appraisers to be impartial and objective, attorneys are precisely the opposite, ISBA noted, as they, by definition, must be partial to the interests of their clients.

In its motions, ISBA was also careful to note they are not asserting lawyers cannot be prosecuted for violating the law. Rather, they said, the actions by the state amount to making illegal the work of the state’s approximately 400 property tax lawyers, making it more difficult for those feeling abused by the property tax system from securing representation before the county and state boards empowered by the state to handle property tax assessment appeals.

“The IDFPR’s interpretation of the Appraisal Act to prohibit lawyers’ advocacy for a specific assessed value absent a supporting Formal Appraisal is literally unprecedented,” McNulty wrote in a brief for ISBA.  “We may never know what possessed the IDFPR, 15 years after passage of the Act, to suddenly take this extreme and unwarranted position. We do know, however, that the IDFPR’s position is wrong as a matter of law.”

In response, however, state officials argue the property tax lawyers they seek to prosecute are essentially engaged in a legal and regulatory sleight of hand, dressing up appraisal services as “legal argumentation.”

“It does not matter that Plaintiff’s members do not hold themselves out as ‘appraisers’ or call their written work ‘appraisals,’” wrote Assistant Illinois Attorney General Michael Arnold, in a brief filed in support of the state agency. “ Plaintiff (ISBA) points to nothing in the Appraisal Act that even suggests that a person could evade the Act’s licensing requirements by not using certain words. This would be akin to arguing that non-physicians could remove other people’s organs so long as they were careful not to call themselves physicians and made a point of calling the procedures something other than the practice of medicine.”

Rather than endangering the ability of property tax lawyers to do their job, the state argued the law would direct lawyers to turn to licensed appraisers, public records and “evidence from other permissible sources” to obtain the evidence they need “while advocating on behalf of their clients.”

While state law permits property owners to offer an opinion on the value of their own property, “… once an attorney becomes involved, an appraisal, broker price opinion, unaltered comparable property assessment from a county assessor, or evidence from other permissible sources must be utilized,” the state argued.

The state further asserted it was not attempting to regulate the legal profession in Illinois, but was merely asserting its prerogative over appraisal services, drawing a distinction between “legal analysis” and “offering an opinion of value.”

“… Offering an opinion of value of property is not the practice of law,” Arnold wrote.  “Legal analysis comes into play once an appraisal is obtained.”

The case remains pending before Cook County Circuit Judge Raymond Mitchell.

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Organizations in this Story

Circuit Court of Cook County Illinois Attorney General Illinois Department of Financial and Professional Regulation Illinois State Bar Association Neal Gerber & Eisenberg LLP Thomas J. McNulty

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