In a controversial decision, Florida’s highest court held that a nonlawyer ticket defense app was providing legal services
In a 4-3 decision, the Florida Supreme Court held that TIKD, a traffic ticket defense app, was engaged in the unlicensed practice of law (“UPL”). In doing so, the court declined to adopt the referee’s recommendation of dismissal, with prejudice, of the UPL complaint and the referee’s determination of summary judgment in favor of TIKD. The Opinion relied both on the Court’s constitutional authority to regulate the practice of law and Florida UPL precedent. The dissent challenges the Opinion’s assumption of the breadth of its constitutional authority, dismisses the application of precedent, and focuses on the lack of demonstrated harm to the public.
The Commentary
The decision was widely reported, sparking both discussion and dismay throughout the legal profession. Ethics experts debated the long term impact at the recent Association for Professional Lawyers (“APRL”) fall gathering and one prominent ethics guru referred to the opinion as “madness,” noting the well written dissent and the fact that only two justices joined the majority with one concurring acknowledging the court’s precedent.
Perhaps it would not have been such a lightning rod if the profession was not in the midst of the dramatic changes occurring in Arizona, Utah’s sandbox, and being contemplated by many other states’ task forces and committees, including Florida. In fact, The Florida Bar Special Committee to Improve the Delivery of Legal Services has recently recommended that the Florida Supreme Court approve the sandbox concept and permit the Committee to design a proposal.
Thus, an optimistic view might consider the Opinion’s acknowledgment in footnote 3 of the potential value of increased access to justice through the use of technology and collaborations, such as the TIKD model, along with the insistence on change being achieved through rule-making may signal a more positive result in Florida’s future. The concurring opinion also noted that changes to UPL policy should occur through rule-making. Of course, the dissent indicates ready embrace.
In the meantime, here is a closer look at TIKD and the Court’s 39 page opinion…
The Process
TIKD app users uploaded pictures of traffic tickets to connect with licensed attorneys. If an attorney agreed to represent an individual, TIKD would charge the individual a percentage of the ticket’s face value and forward that individual’s contact information to a Florida-licensed attorney. TIKD paid the attorney a flat fee to provide the ticket defense. TIKD also paid all associated costs and agreed to fully refund an app user if points were assessed against their driver’s license.
The Referee and the Florida Supreme Court Disagree
The referee who presided over the UPL hearing ruled that TIKD was not engaged in UPL because its function was to provide administrative and financial services; it delegated substantive legal matters to Florida-licensed attorneys. However, the Florida Supreme Court disagreed and held that TIKD’s program constituted UPL.
The Court’s Analysis
The Court applied the Sperry factors to analyze whether TIKD’s services constituted the practice of law. According to Sperry, providing advice and services that impact the important rights of an individual constitutes the practice of law. Sperry held:
…[I]f the giving of…advice and performance of … 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.
Applying Sperry, the Court concluded that TIKD provided services that “have the potential to substantially affect whether a driver timely receives legal representation and the quality of the representation he or she receives.”
In other words, obtaining quality representation in a timely manner for a traffic citation, “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.” Thus, because TIKD is not a law firm and its CEO is not an attorney, TIKD was engaged in UPL.
The majority opinion also cited to Florida’s UPL case law, and the following considerations in support of the UPL determination.
- TIKD collected up-front money from its users, which should have been held in trust for the benefit of the client as when it is collected by a lawyer, per Rule 5-1.1(a).
- TIKD derived its income from the provision of legal services, which created a potential risk that a nonlawyer company’s profit motive would conflict (per Rule 4-1.7(a)(2)) with attorneys’ professional obligations to act in their clients’ best interests.
- TIKD, as opposed to law firms, could not ensure neither the quality of the legal services provided to the public through the licensed attorneys with whom it contracted nor compliance with the Rules of Professional Conduct because of its nonlawyer status.
The Court found that protection of the public should be achieved by enforcing the high standards required of attorneys to legal service providers who are dealing with clients.
The Dissent
However, the dissent had a different view of what the court was protecting with this opinion. Instead of protecting the public, the court wound up protecting “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.”
In supporting this view, the dissent emphasized the following factors.
- TIKD offered a business proposition to its users, rather than legal services, thus it was not engaged in UPL.
- There was no evidence of TIKD’s operations harming the public by way of incompetent, unethical, or irresponsible representation.
- TIKD app users were matched with Florida-licensed attorneys who were thus, subject to the Rules of Professional Conduct and professional discipline.
Thus, the dissent concluded that the public did not need to be protected from TIKD and that TIKD did not have a negative impact on the administration of justice.
To read more of our coverage on UPL in Florida, click here. To read about the acceptance of collaborations among lawyers and nonlawyers in Arizona and Utah, click here and here.
