Hello everyone and welcome to this Ethics Alert with an update on the status of The Florida Bar’s Petition alleging that the TIKD business model constitutes UPL and discuss the referee’s report recommending dismissal of the petition and the oral argument scheduled for March 2020. The case is: The Florida Bar v. TIKD Services LLC and Christopher Riley, Case No.: SC18-149, Lower Tribunal No(s).: 20174035 (11B); 20174045 (11B). The January 19, 2019 report of referee recommending dismissal is here: https://www.responsivelaw.org/uploads/1/0/8/6/108638213/report_of_referee.pdf and the Florida Supreme Court’s Order scheduling oral argument for March 4, 2020 is here: https://efactssc-public.flcourts.org/casedocuments/2018/149/2018-149_order_239445_a01g.pdf
As I previously blogged, the TIKD internet application permits a ticketed person to upload a photo of the ticket and pay a fixed amount. TIKD then retains an attorney to represent that person and, if he or she is ultimately is assessed with points against his or her license, TIKD refunds the payment and also pays the cost of the ticket.
The TIKD business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by an individual.
The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be (or were) in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment. TIKD stated that its services fully comply with Florida Bar ethics rules and that lawyers who represent the individuals receive a flat fee and are independent practitioners “over whom TIKD does not exercise any direction or control.”
On January 23, 2018, The Florida Bar filed a Petition Against the Unlicensed Practice of Law against TIKD and its founder, Christopher Riley. The Petition alleged, inter alia, that TIKD and Riley “advertise in a fashion which may lead a reasonable lay person to believe Respondents are qualified to offer legal services to the public”, “either personally or through advertisement offer traffic ticket defense legal services for a fixed price along with an offer to pay all fines and court costs with a money-back guarantee” and, “either personally or through advertisement offer traffic ticket defense legal services while suggesting that their services are the equivalent of or a substitute for the services of an attorney.”
The Bar’s Petition requested the Court to find that the alleged conduct constitutes the Unlicensed Practice of Law and issue a permanent injunction “preventing and restraining Respondents from engaging in the acts complained of and from otherwise engaging in the practice of law in the State of Florida, until such time as Respondent Riley is duly licensed to practice law in this state.” TIKD filed an Answer and motions and a referee was assigned.
On January 24, 2019, after the parties filed motions and a status hearing was held, the referee issued her report. The report of referee states:
“After a careful review of the portions of TIKD’s website submitted by The Florida Bar and TIKD’s Terms of Service, including the FAQ’s and the prominent disclaimers in the Terms of Service, I find that the materials do not constitute legal advice, and do not represent that Respondents are attorneys or competent to handle legal matters. TIKD provides a service and its customers pay for the convenience
the service offers. No reasonable person could conclude, based on the evidence submitted to the Referee, that TIKD or Riley hold themselves out as providers of legal services.”
“Based on the above Findings of Fact and Conclusions of Law, the Referee recommends that the Supreme Court of Florida dismiss all claims alleged against Respondents with prejudice, enter judgment in favor of Respondents.”
TIKD also filed a lawsuit against The Florida Bar in the U.S. Federal Court, Southern District of Florida, alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations. That case has been settled.
The Florida UPL matter will now be reviewed by the Supreme Court of Florida and the Court will issue an opinion after the March 4, 2020 oral argument.
Bottom line: The TIKD business model implicates the traditional and longstanding prohibitions against the unlicensed practice of law and lawyers splitting fees with non-lawyers. The referee did not agree that the model constituted UPL or fee splitting we will see what the Florida Supreme Court says after the March 4, 2020 oral argument. I will be watching it.
Stay tuned…and be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670