Hello everyone and welcome to this Ethics Alert with an update on the recent Florida Supreme Court opinion on The Florida Bar’s Petition alleging that the TIKD business model constitutes UPL. The case is: The Florida Bar v. TIKD Services LLC and Christopher Riley, Case No. SC18-149. The January 19, 2019 report of referee recommending dismissal of the matter is here: https://www.responsivelaw.org/uploads/1/0/8/6/108638213/report_of_referee.pdf and the Florida Supreme Court’s October 14, 2021 opinion is here: https://www.floridasupremecourt.org/content/download/795189/opinion/sc18-149.pdf As I previously blogged, the TIKD internet app 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.
After the parties filed motions and a status hearing was held, the referee issued her report on January 24, 2019. 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.
On October 14, 2021, after briefs and oral argument, the Florida Supreme Court issued its lengthy opinion. In a 4 to 3 decision, the Court reversed the referee’s findings that TIKD’s online platform matching subscribing lawyers with clients contesting their traffic tickets is only administrative services and is not the practice of law.
The Florida Supreme Court’s majority opinion stated:
The inherent conflict that arises when a nonlawyer either derives income from or exercises a degree of control over the provision of legal services presents a substantial risk that the public will be exposed to and harmed by “incompetent, unethical, or irresponsible representation.
The majority opinion concluded:
Accordingly, the referee’s recommendation is disapproved. Respondents, TIKD Services, LLC, a foreign limited liability company, and Christopher Riley, individually and as founder of TIKD Services, LLC, are hereby permanently and perpetually enjoined from engaging in the acts complained of, as well as any other acts constituting the unauthorized practice of law in the State of Florida.
In the dissenting opinion, Justice Couriel (joined by Justices Polston and Muniz) stated:
The practice of law is not, or at least it is not just, the manner and means of competition among lawyers for clients’ work. Nor is it synonymous with any particular method for determining who gets access to legal services and at what price. We do not protect the profession or the public when we equate the practice of law to these things. I fear we have done that in this case, and in so doing, reached beyond our constitutional grasp.
The dissent quoted from the Florida Supreme Court’s holding in the 1962 Sperry case:
The reason for prohibiting the practice of law by those who have not been examined and found qualified to practice is frequently misunderstood. It is not done to aid or protect the members of the legal profession either in creating or maintaining a monopoly or closed shop. It is done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the code of conduct which, in the public interest, lawyers are bound to observe.
Bottom line: As a result of this opinion, the TIKD app will be immediately shut down and (barring a reversal by the Florida Supreme Court or a federal court), it and future business models using this business model template will be prohibited.
Be careful out there.
Disclaimer: this e-mail is not an advertisement and does not contain any legal advice 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.
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Palm Harbor, Florida
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