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| Meredith Meuwly, ISA CAPP Director of Education |
Example 1
Robert Agent is an individual who provides both brokerage and appraisal services. What are Robert’s obligations under USPAP when preparing a broker’s price opinion (BPO)?
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Answer: USPAP provides flexibility for brokers/appraisers and others who have multiple professional roles.
If providing the service as an agent or broker, USPAP requires only that an appraiser must not misrepresent his or her role. In other words, if Robert was contacted by his client because he is an art consultant or broker and signing his report as a consultant or broker, then Robert need not comply with USPAP except to not misrepresent his role. If Robert is contacted by the client because he is known as an appraiser and is signing his report as an appraiser, then USPAP applies.
Many ISA members wear multiple hats. You might be an art advisor, antique store owner, fine art gallery manager, estate sale person, auction house representative, broker, etc. The most important thing is that you let the client know up front what services you offer and how the services differ from one another. Once a client chooses a service, make it clear which hat you are wearing for that particular assignment. For example, if you offer art advisory services a client might hire you to advise them on what pieces of art to purchase for their collection. This assignment might involve market research, a suggested purchase price or price range for a particular item, negotiating a deal to purchase a piece of art, etc. In your role as an art advisor USPAP would not apply, except you could not misrepresent your role. However, if after purchasing the art the client then wants you to write an appraisal for insurance coverage you are undertaking a new assignment as an appraiser writing an appraisal. For this assignment, you must follow USPAP.
Example 2
Marie Vaughn has a diverse practice with a specialization in litigation services. She commonly aids attorneys in developing cross-examination strategies for expert witness testimony from appraisers. How does USPAP apply to Marie’s "litigation services?"
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Answer: In order to determine Marie’s obligation, it is necessary to understand the nature of her role. If she is acting as an appraiser, her litigation services are part of appraisal practice. The PREAMBLE, the DEFINITIONS, the ETHICS RULE, the COMPETENCY RULE, and the JURISDICTIONAL EXCEPTION RULE will apply to the assignment. As an appraiser, Marie cannot act as an advocate for any party or issue.
If Marie’s services include providing an opinion of value, she must also comply with the appropriate appraisal standards (STANDARDS 7 and 8). If Marie’s services include providing an opinion about the quality of another appraiser’s work, the appraisal review requirements of STANDARDS 3 and 4 apply. If the service includes providing analysis, recommendation, or an opinion to solve a problem where an opinion of value is a component of the analysis leading to the assignment results, then Marie must comply with the ETHICS RULE, the COMPETENCY RULE and the JURISDICTIONAL EXCEPTION RULE for the entire assignment; and she must also comply with any applicable Rules and Standards if she performs an appraisal or appraisal review as part of the assignment.
On the other hand, if Marie provides litigation services as an advocate, then she is providing a valuation service outside of appraisal practice. When performing services outside of appraisal practice, Marie can act as an advocate and accept contingent compensation. The only USPAP obligation is that she not misrepresent her role. She must use care to distinguish her role from other roles that would carry an expectation of being impartial, objective, and independent, i.e., acting as an appraiser.
Marie may provide litigation services by either acting as an appraiser or acting as an advocate for the client’s cause; however, she must not perform both roles in the same case.
Sometimes, in the course of litigation, a judge will order an appraisal be performed of personal property. If you have been asked to provide an appraisal for litigation, then you must follow USPAP, specifically Standard Rules 7 & 8. Why? Because where the law requires an "appraisal" be done (for example, most states will require an "appraisal" by statute for probate), then you must act as an appraiser and follow USPAP. If you have been asked to review another appraiser’s appraisal report as an expert witness and submit that report in writing, you are also acting as an appraiser (See USPAP Standard Rules 3 & 4, the rules for Appraisal Review).
When acting as an appraiser, in either an appraisal or an appraisal review, you must maintain your neutrality. Being neutral does not mean that you cannot point out the flaws in another appraiser's report; in fact, that was what you were hired to do. Instead, it means that you must do so in a neutral and factual manner. If the other appraiser did not follow USPAP and claimed to do so in his or her report, simply state that. And, state how the failure to follow USPAP led to either flawed value conclusions or perhaps shows a lack of professionalism. Similarly, if providing values (i.e., an appraisal under Standard Rules 7 & 8), you can also remain neutral. One way to check yourself is to ask whether your final value conclusions would be different if you were working for the "other side." If your answer is no, then you are maintaining your neutrality.
Generally, if giving testimony or providing a written appraisal report that will be admitted into evidence, you should act as an appraiser and maintain your neutrality. First, expert witnesses are expected to be neutral. Of course, this does not always happen. But if the jury suspects an expert is acting as an advocate, their opinion will quickly be dismissed. Second, if a judge determines that the expert is acting as an "advocate" or "hired gun," the expert’s testimony will likely be disqualified. Finally, as an appraiser, and particularly as an expert witness, you have a reputation to protect. Every bit of testimony and every report that goes into a court can become part of the public record and available for anyone to see. That means when you get back on the stand in another case three years later, you should not be surprised if you are cross-examined on opinions that you gave in an earlier case. You cannot "flip" your opinion without good cause. The best way to do this is to remain neutral.
So, when would you be an advocate in litigation? In most instances you might act as an advocate (and NOT an appraiser) when you are acting behind the scenes and providing litigation services. For example, a law firm might hire you to give it opinions about an appraisal report, but not ask you to serve as an expert witness. An attorney might hire you to explain appraisal methodology to him or her and help draft cross-examination questions for an appraiser. Or, you might be hired to help one side develop a strategy for success in a complex case where the appraisal methodology might be particularly complicated. In these situations, you can act as an advocate. And, when acting as an advocate you CANNOT act as an appraiser because then you are not maintaining your neutrality.
Example 3
Chris Filo is an art appraiser and advisor who has an assignment to advise a client regarding a potential art purchase. The client has provided Chris with an asking price for the work. Chris has made the extraordinary assumption that the value provided is credible and will use that value as part of the analysis before making final recommendations. Which parts of USPAP apply to this assignment?
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Answer: Chris must comply with the ETHICS RULE, the COMPETENCY RULE, and the JURISDICTIONAL EXCEPTION RULE for this assignment.
Because this assignment does not include an appraisal or appraisal review, neither the SCOPE OF WORK RULE nor the RECORD KEEPING RULE applies. In addition, there are no development or reporting standards applicable to this assignment.
Remember that if you are acting an appraiser and providing appraisal services (i.e. a valuation analysis without a full appraisal report), then you are still subject to the USPAP ETHICS RULE, the COMPETENCY RULE, and the JURISDICTIONAL EXCEPTION RULE. If you are an advisor and providing valuation services, then you must not misrepresent yourself.
Example 4
Jane Doe is an antique dealer who offers a variety of professional sales and advisory services to her clients. She is an antique dealer, consultant, authenticator, advisor, and is also a certified appraiser. Jane has been asked by a client to perform a service that is viewed by Jane and her client as a consulting service that relates to value, but is to be undertaken by her in the role of a broker/consultant, not as an appraiser. Which parts of USPAP apply to Jane in this assignment?
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Answer: Individuals may fulfill different roles in different assignments. In general, USPAP applies only when an individual is acting as an appraiser. As long as it is clear that Jane is not performing as an appraiser, Jane’s only obligation when acting as a broker/consultant is stated in Conduct section of the ETHICS RULE, which states,
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"An appraiser must not misrepresent his or her role when providing valuation services that are outside of appraisal practice."
Remember that the "main purposes of USPAP are to protect the public and to promote public trust in the appraisal profession." This means that you must:
- Make it clear up-front which hat you are wearing.
- If you switch hats mid assignment, then it is a new assignment.
- Properly advertise your services. If you currently advertise only as an appraiser, but perform other services, you should change how you are advertising your services. Why? Because if you advertise only as an appraiser, the public is calling you as an appraiser. If you then try to "switch hats," you will be misrepresenting yourself.
Meredith Meuwly, ISA CAPP,
