Thursday, October 14, 2021

TIKD Off

The Florida Supreme Court has rejected a referee's report and concluded a company engaged in unauthorized practice

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 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.

Analysis

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 would be powerless to act for the protection of the public. See art. V, § 15, Fla. Const.

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 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 e 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 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.

The court imposed a permanent and perpetual injunction.

Justice Couriel dissented

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. 

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/10/the-florida-supreme-court-has-rejected-a-referees-report-and-concluded-x-engaged-in-unauthorized-practice-tikd-advertises-th.html

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