The Florida Bar v. TIKD Services LLC, A Foreign Limited Liability Company, and Christopher Riley, individually and as Founder of TIKD Services, LLC ( 2021 )

Supreme Court of Florida
____________
No. SC18-149
____________
THE FLORIDA BAR,
Complainant,
vs.
TIKD SERVICES LLC, A FOREIGN LIMITED LIABILITY
COMPANY, and CHRISTOPHER RILEY, INDIVIDUALLY AND AS
FOUNDER OF TIKD SERVICES, LLC,
Respondents.
October 14, 2021
LAWSON, J.
We have for review a referee’s report on the petition of The
Florida Bar (Bar) to enjoin respondents, TIKD Services, LLC and
Christopher Riley (collectively TIKD), from engaging in the
unauthorized practice of law. The referee recommends that we
dismiss the Bar’s petition with prejudice. We have jurisdiction. See
art. V, § 15, Fla. Const.; see also R. Regulating Fla. Bar 10-7.1. For
the reasons that follow, we disapprove the referee’s
recommendation, conclude that TIKD is engaged in the
unauthorized practice of law, and permanently enjoin it from
engaging in such acts in the future.
BACKGROUND
In January 2018, the Bar filed a two-count petition against
TIKD alleging that it engaged in the unauthorized practice of law,
and that it held itself out to the public via its website and
advertisements as qualified to provide legal services. A referee was
appointed to consider the petition, as well as several motions filed
by the parties. The referee granted summary judgment in favor of
TIKD and submitted a report with the following findings and
recommendations.
TIKD Services, LLC is not a law firm, and its chief executive
officer, Christopher Riley, is not a member of the Bar. TIKD
operates a website and mobile application through which a driver
can receive legal assistance in the resolution of a traffic ticket. A
driver who receives a traffic ticket in one of the four counties in
which TIKD operates can request services by creating an account
with TIKD via its website, agreeing to its Terms of Service, and
uploading a picture of his or her traffic ticket. TIKD then analyzes
the ticket to determine whether it should provide any services to the
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driver. If TIKD declines the ticket, the driver is notified, and he or
she is not charged a fee. If TIKD accepts a ticket, the driver is
charged a percentage of the ticket’s face value, and his or her
contact information is forwarded to a Florida-licensed attorney
whom TIKD has contracted with to provide traffic ticket defense
services to its customers. All costs associated with defending the
traffic ticket are paid by TIKD, including any court costs or
assessed fines. TIKD does not guarantee that a driver’s case will be
resolved favorably and provides a full refund if points are ultimately
assessed against a driver’s license.
A driver who agrees to TIKD’s Terms of Service specifically
authorizes it to do the following:
Representation. By using the TIKD Properties and
purchasing the Services, you authorize us to hire an
independent licensed attorney on your behalf to
represent you on all matters concerning the license plate
number and traffic ticket number submitted by you with
the TIKD Properties and to make payments to such
independent licensed attorney on your behalf.
The attorneys TIKD contracts with are paid a flat rate per case,
regardless of the case’s outcome. The fee paid to each attorney is
set by TIKD and is paid from the fee it collects from each driver.
Each attorney is free to accept or decline representation of any
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driver, and drivers are likewise free to accept or decline
representation from any attorney. If representation is accepted, the
attorney communicates directly with the driver and handles all
aspects of his or her ticket defense case.
On these facts, the referee determined that TIKD is not
engaged in the unauthorized practice of law, and that it does not
advertise in a way that would lead a reasonable person to believe it
is offering legal services to the public. The referee found that TIKD
provides only administrative and financial services, and that its
payment of attorney’s fees on behalf of drivers did not convert its
services into the practice of law, given that rules 4-1.8(f) and 4-
5.4(d) of the Rules Regulating the Florida Bar (Bar Rules) authorize
third-party payment of attorney’s fees. She further found that all
legal services were provided by Florida-licensed attorneys, and that
there was no evidence TIKD’s services place the public at risk of
being advised or represented by unqualified persons in legal
matters. The referee ultimately recommended that a judgment be
entered in favor of TIKD and that the Bar’s petition be dismissed
with prejudice.
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The Bar, consistent with Bar Rule 10-7.1(f), filed an objection
to the referee’s report, challenging the conclusion that TIKD is not
engaged in the unauthorized practice of law. TIKD filed a response
to the objection, and two amicus briefs were filed; one in support of
the Bar from a group of private practice lawyers, collectively referred
to as “Florida Private Practice Lawyers,” and another in support of
TIKD from Consumers for a Responsive Legal System (Responsive
Law) and the Center for Public Interest Law.
ANALYSIS
In this case, the referee granted summary judgment in favor of
TIKD, concluding that no material facts were in dispute and that
TIKD was not engaged in the unauthorized practice of law. This
Court reviews a referee’s entry of summary judgment de novo. Fla.
Bar v. Gold, 937 So. 2d 652, 655 (Fla. 2006); Fla. Bar v. Rapoport,
845 So. 2d 874, 877 (Fla. 2003). We agree that no material facts
are in dispute in this case. From our review of the record, it is
abundantly clear how TIKD operates, the nature of the services it
provides, and the content of its advertisements. The only question
before this Court is thus whether TIKD, as a matter of law, is
engaged in the unauthorized practice of law.
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Under article V, section 15 of the Florida Constitution, this
Court has the authority to “regulate the admission of persons to the
practice of law and the discipline of persons admitted.” Included
within this constitutional mandate is the authority to define what
constitutes the practice of law, as well as the authority to regulate
the activities of persons admitted or authorized to so practice. See
Fla. Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980); State ex rel. Fla.
Bar v. Sperry, 140 So. 2d 587, 588 (Fla. 1962), vacated on other
grounds by 373 U.S. 379 (1963). Also included is the authority to
prohibit unlicensed persons from engaging in acts constituting the
practice of law. Moses, 380 So. 2d at 417.
In defining the practice of law, we have resisted attempts to
formulate a singular, all-encompassing definition, as the practice
itself “must necessarily change with the everchanging business and
social order.” Fla. Bar re Advisory Opinion—Medicaid Planning
Activities by Nonlawyers, 183 So. 3d 276, 285 (Fla. 2015) (quoting
Fla. Bar v. Brumbaugh, 355 So. 2d 1186, 1191-92 (Fla. 1978)).
Nevertheless, in assessing whether certain acts constitute the
practice of law, we generally consider the following:
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[I]n determining whether the giving of advice and counsel
and the performance of services in legal matters for
compensation constitute the practice of law it is safe to
follow the rule that if the giving of such advice and
performance of such services affect important rights of a
person under the law, and if the reasonable protection of
the rights and property of those advised and served
requires that the persons giving such advice possess legal
skill and a knowledge of the law greater than that
possessed by the average citizen, then the giving of such
advice and the performance of such services by one for
another as a course of conduct constitute the practice of
law.
Sperry, 140 So. 2d at 591.
The referee in this case did not apply the above factors in
determining that TIKD was not engaged in the unauthorized
practice of law. She instead primarily relied on her finding that
TIKD provides only administrative and financial services, and that it
delegates all substantive legal matters to Florida-licensed attorneys.
Having considered the Sperry factors, however, we conclude that
they support a finding that TIKD is engaged in the unauthorized
practice of law.
First, the services TIKD provides have the potential to
substantially affect whether a driver timely receives legal
representation and the quality of the representation he or she
receives. The ability to timely obtain quality representation in a
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traffic citation matter, as well as the satisfaction of all assessed
fines and costs, has the potential to substantially affect a driver’s
rights under the law, such as whether he or she retains the
privilege of driving or has points assessed against his or her license.
See id. at 591; see also §§ 318.15 (Failure to Comply with Civil
Penalty or to Appear; Penalty), 322.27 (Authority of Department to
Suspend or Revoke Driver License or Identification Card), Fla. Stat.
(2020).
TIKD advertises the legal services that are at the core of its
business model directly to the public and thereby directly solicits
drivers with legal problems. When a driver engages its services,
TIKD conducts a business review of his or her legal matter to
determine whether it can profitably handle the case (with
profitability as the only apparent criterion considered). It then
either rejects the representation or sends the case to one of the
lawyers it contracts with. TIKD could routinely miss critical
deadlines that substantially impair the legal rights of its clients. It
could also fail in its contractual obligation to pay fines owed,
resulting in a client’s loss of driving privileges or other legal
sanctions. However, because TIKD is not a lawyer, this Court
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would be powerless to act for the protection of the public. See art.
V, § 15, Fla. Const. 1
Second, TIKD collects money from its legal clients and
promises to use that money to pay any court costs or fines that the
legal client incurs as a result of the traffic citation. If a lawyer took
up-front money from a client to satisfy monetary obligations
anticipated to be incurred at the conclusion of a legal proceeding,
the lawyer would be required to hold that money in trust for the
benefit of the client. R. Regulating Fla. Bar 5-1.1(a). Because TIKD
is not a law firm, there are no protections in place to safeguard the
money of these legal clients and thereby assure that the money is
actually available to satisfy the future legal obligations associated
with the legal matter.
Third, an inherent conflict and corresponding risk to the
public arises whenever a nonlawyer like TIKD controls and derives
its income from the provision of legal services. Like any other
1. The fact that TIKD apparently does not routinely miss legal
deadlines is of no consequence because the precedent we would set
by allowing this nonlawyer entity to directly advertise legal services
and accept legal clients would necessarily open the door for any
nonlawyer to similarly control the provision of legal services in the
same way—and with no oversight from this Court.
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business entity, TIKD is motivated by a desire to maintain and
increase profitability. When coupled with the provision of legal
services to the public, there is a risk that such motives will
eventually give rise to a conflict between the profit demands of the
nonlawyer and the professional obligations of attorneys to act in the
interests of a client. See R. Regulating Fla. Bar 4-1.7(a)(2). TIKD is
not subject to the Bar’s jurisdiction and, other than Bar discipline
proceedings against individual attorneys, there is no means by
which to protect the public or guard against such conflicts.
Fourth, as a nonlawyer, TIKD simply lacks the skill or training
to ensure the quality of the legal services provided to the public
through the licensed attorneys it contracts with, nor does it possess
the ability to ensure compliance with the Rules of Professional
Conduct or to otherwise guard against the type of conflict discussed
above. By contrast, if this were a law firm, its owners would be
ethically required to properly supervise any less-experienced
lawyers to whom they assigned a legal matter, see R. Regulating
Fla. Bar 4-5.1(a)-(b), and those owners would possess the legal
training that would prepare them for that supervision. Nowhere is
TIKD’s lack of skill or training in the legal profession more evident
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than in its advertisements, which include statements such as,
“TIKD provides you with a more convenient, more cost-effective
alternative to hiring your own lawyer or using a lawyer referral
service.” Such advertisements are likely to lead a reasonable
person to believe that utilizing TIKD’s services is equivalent to or a
substitute for hiring an attorney. See, e.g., Fla. Bar v. Becerra, 661
So. 2d 299, 300 (Fla. 1995) (enjoining respondent from advertising
in a manner that may lead a reasonable person to believe that she
is capable of providing legal services). In the end, the reasonable
protection of a driver’s legal rights and interests in a traffic citation
matter require that the type of services TIKD provides and
advertises to the public be performed or overseen by a person who
possesses a knowledge and skill in the law greater than that
possessed by the average citizen. See Sperry, 140 So. 2d at 591.
The referee also 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. 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
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either deriving income from or exercising a degree of control over
the provision of legal services.
In Florida Bar v. Consolidated Business & Legal Forms, Inc.,
386 So. 2d 797 (Fla. 1980), we adopted a referee’s recommendation
to enjoin a corporation operated by nonlawyers from offering legal
services to the public through licensed attorneys in its employ. Id.
at 798-801. The referee in the case found that the respondent
improperly exercised a degree of control over the legal services
provided by the attorneys in its employ by engaging in acts typically
reserved to those licensed to practice law. Id. at 799. Specifically,
the referee found that the respondent controlled which legal
services were offered, determined on what matters attorney time
was spent, set and collected fees for legal services, and established
policies for the advance payment of fees and costs. Id.The referee in Consolidated Business ultimately concluded,
however, that even if the respondent somehow changed its business
practices to no longer exercise a degree of control over the attorneys
in its employ and the provision of legal services, its inability to
generate income from means other than the provision of legal
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services was dispositive of whether it was engaged in the
unauthorized practice of law. Id. The referee explained:
Assuming that these practices could be corrected by the
respondent, would the respondent then be free of the
charge of unauthorized practice? It is the finding of this
Referee that this question must be answered in the
negative. The respondent has shown no other means of
producing income other than by the providing of legal
services which is clearly the practice of law. Were the
respondent to cease the providing of such services, then
it would cease to exist as an income producing
enterprise. The nature of the corporate business is such
that it must be deemed to be engaged in the
unauthorized practice of law with or without the
examples of lay control . . . .
Id.We quoted this analysis with approval in Consolidated
Business and today reaffirm the principle that only attorneys
licensed to practice law in Florida are authorized to act like a law
firm by advertising and selling the legal services of lawyers to the
public unless authorized by our rules.2 Therefore, we readily
conclude that the nature of TIKD’s business is such that it cannot
2. While we reaffirm the test outlined in Consolidated
Business for determining what conduct constitutes the practice of
law, we also note that this Court can authorize nonlawyer
organizations to profit from the marketing of legal services—and has
done so. See infra note 3.
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be deemed as anything other than engaged in the unauthorized
practice of law. As in Consolidated Business, TIKD exercises a
degree of control over the attorneys it contracts with and the
services they provide. 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].”
Further, just like Consolidated Business and Legal Forms,
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.
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More recently, we also addressed a similar business model in
Florida Bar re Advisory Opinion—Medicaid Planning Activities by
Nonlawyers, 183 So. 3d 276. There, nonlawyer Medicaid planning
companies advertised legal services to the public, accepted
members of the public as clients, and employed attorneys to provide
the legal services for which the planning companies collected a fee.
We determined that “unless the client establishes an independent
attorney-client relationship with the attorney, payment from the
client is directly to the attorney, and the initial determination that
the particular legal document or Medicaid planning strategy is
appropriate for the client given the client’s particular factual
circumstances is the determination of the attorney, then the
company would be engaged in the unlicensed practice of law.” Id.
at 284 (quoting committee’s opinion with approval). TIKD is
engaged in the unlicensed practice of law under this test. Although
TIKD’s customers ultimately appear to establish an independent
attorney-client relationship with one of TIKD’s contractually
retained lawyers, the other two factors are clearly not met.
We are convinced that our precedent in this area is sound
given “the inherent danger of the [unregulated] intervention of lay
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persons or organizations in the attorney-client relationship,”
Consolidated Business, 386 So. 2d at 801. Many of the dangers
inherent in this type of intervention have already been addressed,
as we explained how the ethical standards governing lawyers and
law firms would apply to prohibit a law firm from dealing with legal
clients (and their money) in the same way that TIKD does. The
bottom line is that “[a]n attorney in dealings with his client must
exercise a much higher standard of good faith than is required in
ordinary business dealings or arm’s length transactions.” Brigham
v. Brigham, 11 So. 3d 374, 386 (Fla. 3d DCA 2009). Were we to
abandon these higher standards by allowing nonlawyer entities
unburdened by them to profit from the commoditization of legal
services—through the unregulated marketing and sale of a lawyer’s
time—it would be difficult, if not impossible, to logically defend
constraining the income potential of law firms by regulating their
dealings with legal clients.
Ideally, these regulations would be unnecessary. They are,
after all, designed to enforce high standards of conduct that would
naturally flow, without regulation, from a professional culture in
which attorneys are routinely inculcated with classic virtues such
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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. 3
3. We fully acknowledge that TIKD appears to have found a
profitable business niche that capitalizes on an unusually high rate
of traffic citation dismissals, resulting in a very “good deal” for most
of the corporation’s legal clients. We also acknowledge that Mr.
Riley appears to run that business well and would presumably
continue to do so—unless the anomalies that cause the high
dismissal rate in those jurisdictions where his algorithm predicts a
profit margin are corrected. It could be argued, therefore, that TIKD
in some ways increases affordable access to our justice system.
However, irrespective of any benefits arguably created by TIKD’s
unique, and perhaps temporary, niche, we cannot address the
access to justice problem by allowing nonlawyer corporations to
engage in conduct that, under this Court’s sound precedent,
constitutes the practice of law.
We recognize that advances in technology have allowed for
greater access to the legal system through readily available legal
forms, which represent the commoditization of legal work products
that at one time were only readily accessed by hiring lawyers.
Although continuing advances in technology could offer similar
opportunities, those issues should be explored through this Court’s
rulemaking process—see R. Regulating Fla. Bar 1-12.1—where
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Two final points merit mention. First, the referee in this case
also determined that TIKD is simply paying for an attorney on
behalf of a driver and that Bar Rules 4-1.8(f) and 4-5.4(d) authorize
such payments by third parties. Bar Rules 4-1.8(f) and 4-5.4(d)
authorize an attorney to accept payment for services from a third-
party if the client gives informed consent, there is no interference
with the attorney’s professional judgment, and information related
to the representation is protected. The two rules, as well as the rest
of the Rules of Professional Conduct, define what conduct attorneys
may engage in and do not establish the boundary between what is
or is not the practice of law. Further, the two rules are not even
implicated under the facts of this case. TIKD designates a portion
of the fee it collects from drivers for the payment of the attorney it
retains on the driver’s behalf. That is, TIKD does not use third-
party funds to pay the attorney, but instead uses the driver’s own
differentiation is possible and where all ramifications can be fully
explored with all interested parties. Cf. In re Amends. to Rules
Regulating the Fla. Bar—Subchapter 4-7 (Law. Referral Servs.), 238
So. 3d 164, 165 (Fla. 2018) (amending Bar Rule 4-7.22 to authorize
and regulate nonlawyer “Qualified Providers” that receive a
monetary or other benefit for the referral of prospective clients to
lawyers or law firms).
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funds, essentially holding the designated portion of the collected fee
in trust for the benefit of the driver.
Finally, TIKD contends that it plainly discloses its nonlawyer
status to the public on its website and in its Terms of Service, and
that the Bar has produced no evidence of harm to the public.
However, TIKD’s disclosure of its nonlawyer status to the public
does not permit it to do what its status as a nonlawyer prohibits it
from doing. See § 454.23 (Attorneys at Law; Penalties), Fla. Stat.
(2020). There is also no requirement in cases involving the
unlicensed or unauthorized practice of law that the Bar produce
evidence of actual harm to the public; rather, the potential for such
harm is sufficient. See Moses, 380 So. 2d at 417. 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.” Id.CONCLUSION
Accordingly, the referee’s recommendation is disapproved.
Respondents, TIKD Services, LLC, a foreign limited liability
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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.
The Bar has requested that the costs of this proceeding be
taxed against TIKD. See R. Regulating Fla. Bar 10-7.1(d)(2). The
Court reserves ruling on the request until the Bar files an affidavit
of costs.
It is so ordered.
LABARGA and GROSSHANS, JJ., concur.
CANADY, C.J., concurs in result with an opinion.
COURIEL, J., dissents with an opinion, in which POLSTON and
MUÑIZ, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
CANADY, C.J., concurring in result.
I agree that our precedents regarding the unauthorized
practice of law support the Bar’s position in this case. I therefore
concur in enjoining the Respondents from the acts complained of
and other acts constituting the unauthorized practice of law. In my
view, any reexamination of the policy judgments reflected in our
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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, J., dissenting.
TIKD formulated no legal strategy. It gathered no evidence. It
filed no court papers. It made no court appearances, no arguments
to a judge or jury. Other than in explaining its offerings on its
website, it answered no questions. It did not, because it could not,
promise its customers that their communications would be
privileged. In short, if you had hired TIKD to solve your legal
problem and received only what the company offered—without the
services of the member of The Florida Bar it helped you find—you
probably would have wanted your money back.
That is because 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. Because today’s decision reaches well
beyond our constitutional mandate to “regulate the admission of
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persons to the practice of law and the discipline of persons
admitted[,]” art. V, § 15, Fla. Const., and into the business
arrangements of people trying to solve their legal problems, I
respectfully dissent.
I
While it is true that we review a referee’s entry of summary
judgment de novo, majority op. at 5, it is nevertheless worth
pausing to acknowledge a few of the facts found by the referee in
this matter.
First, the referee found facts about TIKD’s business model.
Reduced to its fundamentals, TIKD “provide[d] a technology
platform and financial guarantee for drivers who have received a
traffic ticket.” Report of Referee at 6. The technology platform was
familiar to anybody with a smartphone: create an account, read (if
you like) the company’s terms of service, 4 visit (if you like) a link
containing answers to “frequently asked questions,” then click in
4. Those terms state, in bold text, that the agreement forms
no attorney-client relationship between TIKD and the customer, and
that TIKD is not a law firm. ROA at 86. Additionally, and
importantly, they state that TIKD will not provide services in
connection with criminal and serious infractions. ROA at 87.
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agreement if you decide to proceed. The financial guarantee was
perhaps less familiar, 5 but not complicated. TIKD offered its
customers a degree of certainty about the financial impact of
defending a traffic ticket. Customers paid more than zero, but no
more than TIKD’s fee, which it set based on its assessment of what
was likely to happen. TIKD thus bought the upside potential of a
positive financial outcome (when the ticket was resolved for less
than what the customer was charged) and bore the downside risk of
loss (when it was not, including when financial penalties and points
were assessed). TIKD charged no fee to potential customers whose
tickets it declined to match with an attorney. If TIKD did, in fact,
make a match, it calculated its fee without discussion or
negotiation with the customer.
5. Less familiar, that is, to those of us who are not financial
professionals. Those who are might see in TIKD’s product more
than a passing resemblance to a hedge. See Hedge, Black’s Law
Dictionary (11th ed. 2019) (“To use two compensating or offsetting
transactions to ensure a position of breaking even; esp., to make
advance arrangements to safeguard oneself from loss on an
investment, speculation, or bet, as when a buyer of commodities
insures against unfavorable price changes by buying in advance at
a fixed rate for later delivery.”). The Bar does not, at least in this
case, argue that it would be improper for a lawyer to offer such a
financial bargain.
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Second, setting aside the majority’s conclusion that, as a
matter of law, TIKD’s advertisements constituted legal advice—to
which we will come later—the referee found that, as a matter of fact,
TIKD did not give legal advice. See Report of Referee at 6 (“In the
process of deciding whether to accept a ticket, TIKD does not give
the driver any legal advice or tell the driver about available defenses
or the likelihood of a fine.”); id. at 7 (“TIKD does not give legal advice
or provide legal representation to ticketed drivers.”). From the
“frequently asked questions” section of its website, where today’s
majority finds impermissible attorney advertising, the referee
quoted as follows:
Why should I choose to use TIKD?
TIKD provides a simple, cost-effective option for you to
take action on your traffic ticket. Remember, we are not a
law firm and we do not provide legal advice. We’re number
crunchers and technology lovers and we’re here to offer you
a new way to handle your traffic ticket.
Can’t I hire a lawyer to do the same thing for me?
You sure can! And we encourage you to do the
research and make an informed choice on what’s best for
you and your individual case. . . .
Can I talk to the lawyer who will handle my case?
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Absolutely. Your lawyer is YOUR lawyer. Once we
have reviewed and verified your traffic ticket you will be
provided with your lawyer’s contact information. You can
contact your lawyer directly and TIKD does not participate
in your relationship with your lawyer.
Do I have to pay my lawyer separately?
No. A portion of what you pay to TIKD will go directly
to your lawyer. The amount you pay to TIKD is all you will
ever have to pay.
Id. at 10. TIKD did not, for example, participate in attorney-client
communications over which a customer could plausibly assert the
privilege; that is, communications in anticipation of litigation, in
which advice tailored to the client’s particular case presumably
would have occurred. See id. at 8 (“Drivers communicate directly
and confidentially with their attorneys, not through TIKD.”). TIKD
expressly advised potential customers that it was “not an attorney
and does not provide any legal advice . . . ALL LEGAL MATTERS
ARE HANDLED BY INDEPENDENT LICENSED ATTORNEYS HIRED
ON YOUR BEHALF. TIKD WILL NOT PROVIDE YOU WITH ANY
LEGAL ADVICE OR DISCUSS THE LEGAL ASPECTS OF YOUR
CASE WITH YOU.” Id. at 9. In sum, nobody claims, nor is there
any evidence, that TIKD gave any customer individualized legal
advice about his or her ticket or case; that anybody mistakenly
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thought TIKD was a law firm; or that TIKD directed or interfered
with the customer’s attorney’s legal work.
Third, and again leaving aside the status of this conclusion as
a legal matter, the referee found that TIKD’s customers did in fact
enter into independent relationships with the attorneys matched
individually to their cases. Having determined that a ticket met its
criteria, TIKD would pass the driver’s contact information and ticket
to a licensed Florida attorney, who was free to accept or decline the
opportunity to work for TIKD’s customer, at a rate of compensation
set by TIKD. If the attorney accepted, his or her representation of
TIKD’s customer would be governed by an engagement letter
negotiated between the two of them, without any involvement by
TIKD. The customer, meanwhile, was free to decline TIKD’s
proposed match for any reason. If the attorney declined, TIKD
might send the customer’s information to another candidate; if
there were no takers, TIKD gave the driver a full refund, and off he
or she went to find a lawyer the old-fashioned way. Report of
Referee at 7. Where there was a match, however, attorney and
client worked and communicated directly together, with no
participation by TIKD—which, crucially, had no control over how
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the legal services were rendered, and no participation in the defense
of the ticket. At the end of the day, if the ticket was dismissed,
TIKD kept its fee; if a fine was assessed, TIKD paid it, whether it
was more or less than its fee; and if points were assessed, TIKD
gave the customer a full refund. Id. at 8.
Fourth, and finally, the Bar does not allege, and provided the
referee no evidence, that any customer complained about or was
harmed by TIKD’s work. The record contains no evidence of any
complaints to the Bar about any of the independent lawyers to
whom TIKD’s customers were introduced.
The Bar’s complaint against TIKD alleged two violations
amounting to the unauthorized practice of law: first, that TIKD
advertised in a fashion that would lead a reasonable lay person to
believe TIKD was qualified to offer legal services to the public; and
second, that TIKD in fact offered legal services through members of
The Florida Bar in a way that “violate[d] the letter and spirit” of our
cases. The referee disagreed on both counts.
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II
A
As this Court noted in Florida Bar v. Moses, 380 So. 2d 412,
417 (Fla. 1980), “[t]he single most important concern in the Court’s
defining and regulating the practice of law is the protection of the
public from incompetent, unethical, or irresponsible
representation.”
Here, the record contains no evidence that the public received
any incompetent, unethical, or irresponsible representation due to
TIKD’s business. The lawyers to whom TIKD introduced its users
were all members of the Florida Bar, subject to its rules and to its
(and our) discipline. We have been directed to no alleged
malpractice, or even dissatisfaction, involving lawyers matched with
their clients by TIKD. We therefore cannot conclude, on this record,
that the public needed the Bar’s protection from TIKD, or that its
operations even once had a negative effect on the administration of
justice. But see Fla. Bar v. Neiman, 816 So. 2d 587, 596 (Fla. 2002)
(“[D]efining the practice of law must be considered in the context of
our obligation to protect the public . . . . [T]he major purpose for
prohibiting the unlicensed practice of law is to protect the
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consuming public from being advised and represented in legal
matters by unqualified persons who may put the consuming
public’s interests at risk.”); Fla. Bar v. Schramek, 616 So. 2d 979,
984 (Fla. 1993) (finding that it was necessary to enjoin a man and
his company from publishing “kits” used for seeking legal relief and
assisting debtors in bankruptcy because this constituted the actual
practice of law which was in fact detrimental to the public).
B
Today’s majority winds up protecting something else: the
traditional way people find, or fail to find, satisfactory counsel for
traffic tickets, and the business interests that have come to rely on
the way things have generally been. The majority finds no “cases or
rules authorizing a comparable bifurcation of responsibilities
between lawyers and nonlawyers with respect to the provision of
legal services.” Majority op. at 12. 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.” Art. V, § 15, Fla.
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Const. 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.
TIKD’s business model required it to accept tickets that could
likely be resolved at a cost of production (that is, the amount it
would pay to counsel, plus its overhead) lower than the fee the
customer was willing to pay. Nothing about that calculation would
be different if TIKD was run by an attorney—because, after all, it is
a calculation, followed by an investment of money, and not legal
advice followed by the defense of a case.
TIKD, the Bar says, cannot produce income without lawyers
practicing law. That is also true of parties who provide litigation
finance, 6 who do not themselves give legal advice or do other legal
6. See Paul Sullivan, Pandemic is Expected to Bring More
Lawsuits, and More Backers, New York Times, June 19, 2020
https://www.nytimes.com/2020/06/19/your-money/lawsuits-
litigation-finance-coronavirus.html (explaining that litigation
financing companies are “nonrecourse financing” arrangements,
“meaning if the company or lawyers lose the case, they don’t owe
the investors anything,” which allows law firms and companies to
minimize risk while still having access to working capital); Connie
Loizos, This Young Litigation Finance Startup Just Secured $100
Million to Chase Cases it Thinks Will Win, Tech Crunch, Sept. 18,
2019, https://techcrunch.com/2019/09/17/this-young-litigation-
finance-startup-just-secured-100-million-to-go-after-cases-it-
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work. It is true of insurers who hire lawyers for their covered
customers. See R. Regulating Fla. Bar 4-1.8(f), 4-5.4(d).7 It is true
of court reporters, people who prepare trial graphics, and indeed an
entire economy incident and complementary to the practice of law
thinks-are-winners/ (describing a start-up litigation financing
company and stating that litigation financing is, “[i]n a nutshell . . .
fund[ing] plaintiffs and law firms in cases where it looks like there
will be a winning ruling”); Jacob Gershman, Lawsuit Funding, Long
Hidden in the Shadows, Faces Calls for More Sunlight, The Wall
Street Journal, Mar. 21, 2018 8:00 AM,
https://www.wsj.com/articles/lawsuit-funding-long-hidden-in-the-
shadows-faces-calls-for-more-sunlight-1521633600 (reporting that
as of December 31, 2017, the top four litigation financing funds
raised a total of $1.2 billion); Sara Randazzo, Litigation Funding
Moves into Mainstream, The Wall Street Journal, Aug. 4, 2016 3:20
PM, https://www.wsj.com/articles/litigation-funding-moves-into-
mainstream-1470338402 (describing the increasing availability of
litigation funding to investors other than large hedge funds,
including individual “accredited investors” as that term is defined
by the U.S. Securities and Exchange Commission); Mattathias
Schwartz, Should You be Allowed to Invest in a Lawsuit?, New York
Times, Oct. 22, 2015,
https://www.nytimes.com/2015/10/25/magazine/should-you-be-
allowed-to-invest-in-a-lawsuit.html (describing the historical and
modern use of litigation financing and reporting that one of the
larger funds, formerly known as IMF Bentham and now known as
Omni Bridgeway, had as of 2015 a portfolio of 39 cases with a value
of over $2 billion).
7. Though it cites them, the majority reassures us these rules
“are not even implicated under the facts of this case.” Majority op.
at 19. And while well that thankfully may be, it is not because any
logical principle limits the majority’s conclusion from affecting those
rules.
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that we have neither the constitutional authority nor the capacity to
regulate.
C
We have not purported to have that authority in our cases.
We did not do so in State ex rel. Florida Bar v. Sperry, 140 So. 2d
587 (Fla. 1962) vacated on other grounds by 373 U.S. 379 (1963).
There, we prohibited a man not licensed to practice law in Florida
from, among other things, holding himself out to the public as a
patent attorney; rendering legal opinions; preparing, drafting and
construing documents; and “otherwise engaging in the practice of
law.” Id. at 596. As we said there:
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.
Id. at 595. TIKD, of course, did not advise or represent in legal
matters any of its customers, who received those legal services from
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duly licensed Florida attorneys, subject at all times to our
discipline.
Nor is the majority’s decision today compelled by Florida Bar v.
Consolidated Business & Legal Forms, Inc., 386 So. 2d 797 (Fla.
1980). In that case, we considered a company that was expressly
“in the business of offering legal services through members of The
Florida Bar who [we]re its full time employees.” Id. at 798. There
as here, the officers and stockholders of the company were “non-
lawyers with no legal training,” but those nonlawyers “supervise[d]
and control[led] the day to day business of the corporation” as it
advised and performed legal services for clients. Id. The company,
through its nonlawyer employees, limited the amount of client
conference time per individual case, promulgated legal forms to be
used as part of the legal services rendered, and had access to the
files and work product generated by its lawyer employees on behalf
of its customers. Id. at 799. Further, the company terminated its
lawyer employees at will, holding on to client files when it did so,
and not notifying clients when their matters were transferred to new
lawyers. Most importantly, the referee in that matter found that the
company’s practices “resulted in injury or inadequate
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representation of [its] clients,” several of which the referee
specifically identified as having been prejudiced. Id. at 800.
On those very different facts, we concluded that the business
in question was engaged in the unauthorized practice of law, and
found it illustrated “the inherent danger of the intervention of lay
persons or organizations in the attorney-client relationship.” Id. at
801. We have been solicitous of that relationship, and rightfully so.
See Fla. Bar re Advisory Op.—Medicaid Planning Activities by
Nonlawyers, 183 So. 3d 276 (Fla. 2015) (finding that nonlawyers
were impermissibly practicing law when they drafted personal
service contracts, prepared and executed qualified income trusts,
and gave legal advice about the implementation of Florida law to
obtain Medicaid benefits). But TIKD did not exercise similar control
over anybody’s attorney-client relationship, direct the way legal
services were rendered, or control any lawyer’s legal advice.
Nor have we been given evidence that TIKD’s actions harmed
anybody. This is in stark contrast to the documented harm that
occurred to clients in both Medicaid Planning Activities by
Nonlawyers and Consolidated Business & Legal Forms, Inc. See
Medicaid Planning Activities by Nonlawyers, 183 So. 3d at 285
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(“Testimony described the type of harm caused by nonlawyer
Medicaid planners which includes denial of Medicaid eligibility,
exploitation, catastrophic or severe tax liability, and the purchase of
inappropriate financial products threatening or destroying clients’
life savings.”); see also Consol. Bus. & Legal Forms, Inc., 386 So. 2d
at 800 (approving referee report finding that company’s actions
“resulted in injury or inadequate representation of [its] clients”).
Tellingly, in both of those cases, the documented harm was directly
caused by nonlawyers engaging in substantive legal work for their
clients.
D
Next, we come to the majority’s decision that “TIKD advertises
the legal services that are the core of its business model directly to
the public and thereby directly solicits drivers with legal problems.”
Majority op. at 8. There is no dispute that TIKD advertised directly
to the public. And yet it advertised not its legal services or the legal
services of any particular lawyer, but the financial bargain and
attorney introduction described on its website. 8 See Report of
8. While the record contains evidence of no such thing, the
majority fears “TIKD could routinely miss critical deadlines that
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Referee at 10 (quoting language about TIKD’s services from its
“Frequently Asked Questions” page on its website); see also ROA at
181 (screenshot of TIKD’s former website describing “What TIKD
Does”).
The parties to the communication matter, because “regardless
of a putative client’s subjective beliefs, there can be no attorney-
client relationship when the client does not consult with the
attorney, especially when there is no contact between them.”
Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1282
(11th Cir. 2004) (citing Fla. Bar v. Beach, 675 So. 2d 106 (Fla.
1996)). TIKD’s advertisements were non-attorney communications,
subject to the prohibitions on misleading advertisement generally
applicable in Florida. See §§ 817.41, 817.44, Fla. Stat. (2020).
substantially impair the legal rights of its clients” or “fail in its
contractual obligation to pay fines owed, resulting in a client’s loss
of driving privileges or other legal sanctions.” Majority op. at 8-9.
TIKD might also abscond with its customers’ money, leaving
nothing to pay the state if and when fines come due. Id. at 9.
Worst of all, “because TIKD is not a lawyer, this Court would be
powerless to act for the protection of the public.” Id. Even as
monsters under the bed go, these vanish with particular dispatch.
This Court is not powerless to act where there has been a breach of
contract and is not confined to remedying only those injuries to
people’s rights and interests committed by lawyers.
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So, too, does the content of the communication matter. If
what TIKD’s website contains—a list of options, not specifically
addressed to any client, about certain legally permissible responses
to a traffic ticket—constitutes legal advice, then so does Florida’s
Uniform Traffic Citation, which itself lists “options.” 9 To hold that
so generalized a communication constitutes advice strains the word
beyond its generally accepted meaning, which, especially as applied
to lawyers, generally connotes learned and informed counsel. 10 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.
9. The Florida Uniform Traffic Citation promulgated by the
Florida Department of Highway Safety and Motor Vehicles gives the
recipient the option to (1) pay the fine, (2) contest the citation, or (3)
take a driver improvement course. If the driver elects to take the
driver improvement course, there is a reduction in the applicable
fine. See Fla. Dep’t of Highway Safety & Motor Vehicles, Traffic
Citations, flhsmv.gov/traffic-citations/ (last visited July 6, 2021).
10. Advice is “guidance offered by one person, esp. a lawyer,
to another; professional counsel.” Advice, Black’s Law Dictionary
(11th ed. 2019); see also Advice, Oxford English Dictionary (2d ed.
1989) (“guidance or recommendations concerning prudent future
action, typically given by someone regarded as knowledgeable or
authoritative”).
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III
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.
POLSTON and MUÑIZ, JJ., concur.
Original Proceeding – The Florida Bar
Joshua E. Doyle, Executive Director, Kellie D. Scott, Chair,
Standing Committee on Unlicensed Practice of Law, William A.
Spillias, Unlicensed Practice of Law Counsel, and Algeisa Maria
Vazquez, Bar Counsel, The Florida Bar, Tallahassee, Florida; and
Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, Florida,
for Complainant
Christopher M. Kise of Foley & Lardner LLP, Tallahassee, Florida;
and Ramón A. Abadin of Ramón A. Abadin, P.A., Coral Gables,
Florida,
for Respondents
Gregg D. Thomas and James J. McGuire of Thomas & Locicero PL,
Tampa, Florida,
- 38 -
for Amici Curiae Gold & Associates, P.A. d/b/a The Ticket
Clinic, Joseph Lorusso, P.A., The Law Offices of Lou Arslanian,
Steven Bell, Esq., and The Law Offices of H. A. Rodriguez
Raoul G. Cantero of White & Case LLP, Miami, Florida,
for Amici Curiae Responsive Law and Center for Public
Interest Law
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