The Florida Bar

Florida Bar News

TIKD’s online service found to be UPL

Senior Editor Top Stories
Justice Alan Lawson

Justice Alan Lawson

The TIKD Services online company that provides attorneys for ticketed drivers — if the company accepts their case — is committing the unlicensed practice of law, according to the Supreme Court.

The divided court on October 14 overturned the findings of the referee in the case, who had recommended summary judgment in favor of TIKD.

Justices Jorge Labarga and Jamie Grosshans agreed with the majority opinion by Justice Alan Lawson. Chief Justice Charles Canady concurred in the result with a separate opinion. Justice John Couriel dissented, joined by Justices Ricky Polston and Carlos Muñiz.

TIKD has been one of the highest-profile UPL cases in many years, with supporters saying the company found an innovative technological way to connect ticketed drivers with lawyers. The Bar charged that TIKD held itself out in advertisements as qualified to make legal decisions and engaged in UPL.

“TIKD screens all traffic tickets and selects which matters, and correspondingly which legal issues, get assigned to an attorney, as well as the timing of that assignment. TIKD’s Terms of Service, not a licensed attorney, designate when an attorney-client relationship is initiated. The fee paid to each attorney is set and collected by TIKD, and the contract TIKD enters into with each attorney requires that the attorney provide legal services in accordance with the ‘TIKD Guidelines,’ which ‘describe the Attorney’s responsibilities in providing Services to each [driver],’” Justice Lawson wrote in the majority opinion. “TIKD has no means of producing income except through the provision of legal services — i.e., the representation of clients in a civil or criminal county court proceeding. That is, TIKD is in the business of selling legal services to the public. If it stopped contracting with attorneys, TIKD could not legally represent drivers in court proceedings, and its business would cease to exist.”

Justice Couriel disagreed, writing, “TIKD offered not legal services, but a business proposition: hire a lawyer we introduce, at a fee we set, and you will not bear the risk that the lawyer’s services, or indeed your ticket, will cost you more than our fee. Offering that bargain does not constitute the practice of law, and thus cannot have constituted the unauthorized practice of law.”

Lawson noted that TIKD is owned by a nonlawyer, Christopher Riley. Operating in four Florida counties, it has drivers send a picture of their traffic citation and license plate number to the company. TIKD analyzes that information and if it takes the case, it charges the driver a percentage of the ticket’s face value and refers the case to an attorney, who is paid a fixed fee by TIKD.

The attorney is free to reject the case and the client is free to seek another attorney. TIKD pays all defense costs, including any court costs and fines if the client loses the case, and refunds fees paid by the client if points are assessed against his or her driver’s license.

The client, in agreeing to use TIKD, specifically authorizes the company to hire an attorney “and to make payments to such independent licensed attorney on our behalf.”

Lawson wrote that the court agreed with the referee that no material facts are in dispute in the case and the only question is whether TIKD is committing UPL. But unlike the referee, he said the company was doing more than providing administrative and financial services.

That includes: If TIKD missed deadlines clients would be harmed and the court would have no jurisdiction over the company; unlike lawyers the company is not required to protect clients by placing in a trust account amounts needed to pay fines and fees if the client’s case is lost; there is an inherent conflict between the company’s drive for profit and engaging attorneys to provide quality representation; and the company’s advertising says it is a reasonable alternative to directly hiring a lawyer or using a lawyer referral service, implying the company has legal skills.

“The referee…failed to cite any cases or rules authorizing a comparable bifurcation of responsibilities between lawyers and nonlawyers with respect to the provision of legal services,” Lawson said. “A review of our case law reveals that we have unanimously determined similar arrangements to constitute the unauthorized practice of law, particularly when the arrangement resulted in a nonlawyer either deriving income from or exercising a degree of control over the provision of legal services.”

He conceded there was little if any evidence TIKD had caused consumer harm, but he said the potential for harm justified the court’s action. Lawson also said other companies following TIKD’s lead if the court didn’t act might not be so scrupulous.

Bar conduct rules, Lawson wrote, are intended to promote “classic virtues such as courage, truthfulness, diligence, humility, and an internalized ethic that places fidelity to just action, client loyalty, and support for the institutions that make freedom under the rule of law possible above raw financial gain. We will certainly not jettison these ideals by sanctioning the unregulated commoditization of legal services — a paradigm shift that would put corporations governed solely by the profit motive between lawyers and their clients.”

Chief Justice Canady wrote that he agreed that the court’s precedents supported the majority’s position. But added, “In my view, any reexamination of the policy judgments reflected in our precedents on this subject should be undertaken in the context of rule proceedings related to proposed amendments to the Rules Regulating the Florida Bar.”

Couriel said TIKD clearly states on its website that it did not provide legal advice or services, that once an attorney was chosen it did not participate in any attorney-client communications, and there has been no harm shown by TIKD or the lawyers it connected with clients. He rejected the majority’s claim there were not cases or rules “authorizing a bifurcation” between lawyers and nonlawyers on the provision of legal services.

“That presumes, incorrectly, that it is up to us to authorize how people in a free market bargain with lawyers and nonlawyers to address their legal problems. If we have such authority, it is not given to us by our constitution, which says merely that we ‘regulate the admission of persons to the practice of law and the discipline of persons admitted…,’” Couriel wrote. “That mandate cannot be read to include a plenary power to regulate the business models of lawyers or their firms, to say nothing of nonlawyers and their enterprises.”

He also disputed that TIKD’s advertising is for legal services by directly soliciting “drivers with legal problems.” TIKD advertises a financial deal for those drivers, that the fee they pay if TIKD approves them will be the maximum they pay in fees or fines should they lose and that payment will be refunded if points are assessed against their driver’s license, Couriel argued.

He said while the TIKD website contains a generic set of options on permissible responses to a traffic ticket, so does Florida’s Uniform Traffic Citation form and such general information is not legal advice.

“It is strange indeed that we have seized upon a company’s having told consumers that they have options to put it out of business,” Couriel wrote.

The court acted in The Florida Bar v. TIKD Services LLC, Case No. SC18-149.

News in Photos