Request By:
Mrs. Ellis A. Merrifield
Kentucky Board of Tax Appeals
Capital Plaza Office Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You want to know whether the Board of Tax Appeals can prohibit the representation of taxpayers before the Board by nonlawyers.
You specifically want to write the following type of letter:
"It appears from this appeal that you are representing another in a matter pending before this Board. Under the Rules of the Supreme Court governing the practice of law you may not engage in the practice of law unless you are licensed before the Supreme Court to practice in this State before the courts of jurisdiction in this State. You may, of course, represent yourself, or be represented by counsel."
KRS 524.130 provides:
"(1) Except as provided in subsection (2), a person is guilty of unlawful practice of law when, without a license issued by the Supreme Court, he engages in the practice of law, as defined by rule of the Supreme Court.
"(2) A licensed nonresident attorney in good standing, although not licensed in Kentucky, is not guilty of unlawful practice if, in accordance with rules adopted by the Supreme Court, he practices law under specific authorization of a court.
"(3) Unlawful practice of law is a Class B misdemeanor. "
RAP 3.020 defines the practice of law as:
" . . . any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor."
Further, RAP 3.460 sets out a procedure for investigating and enforcing the prohibition against the unauthorized practice of law.
RAP 3.470 provides:
"Any attorney who knowingly aids, assists or abets in any way, form or manner any person or entity in the unauthorized practice of law shall be guilty of unprofessional conduct."
Thus, it is clear that to practice law without a license is a criminal offense (albeit a misdemeanor) and that no attorney may aid, assist or abet such unlawful practice.
Inasmuch as one member of the Board of Tax Appeals is an attorney (KRS 131.320), he could not permit the unauthorized practice of law without being subject to RAP 3.470. And, the nonattorney members, in permitting the practice of a nonattorney (in representing a third party) would be condoning the violation of Kentucky's Penal Code (KRS 524.130)
Therefore, you could legelly enjoin such unauthorized
For a case in point, see Kentucky State Bar Association v. Bailey (1966) Ky., 409 S.W.2d 530.
You might consider such procedure by way of a regulation so that the Board's policy would be disseminated more widely.