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

• Court: Supreme Court of Florida
• Decided: October 14, 2021
• Docket: SC18-149
• Status: Published

Opinion

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

-2- 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

-3- 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.

-4- 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.

-5- 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:

-6- [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

-7- 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

-8- 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.

-9- 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

- 10 - 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

- 11 - 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

- 12 - 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.

- 13 - 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.

- 14 - 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

- 15 - 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

- 16 - 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

- 17 - 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).

- 18 - 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

- 19 - 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

- 20 - 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

- 21 - 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.

- 22 - 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.

- 23 - 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?

- 24 - 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

- 25 - 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

- 26 - 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.

- 27 - 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

- 28 - 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.

- 29 - 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-

- 30 - 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.

- 31 - 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

- 32 - 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

- 33 - 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

- 34 - (“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

- 35 - 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.

- 36 - 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”).

- 37 - 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

- 39 -