Fla. Bar v. Tikd Servs. LLC
| Decision Date | 14 October 2021 |
| Docket Number | No. SC18-149,SC18-149 |
| Citation | 326 So.3d 1073 |
| Parties | The FLORIDA BAR, Complainant, v. TIKD SERVICES LLC, a Foreign Limited Liability Company, and Christopher Riley, Individually and as Founder of TIKD Services, LLC, Respondents. |
| Court | Florida Supreme Court |
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, 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
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.
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 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 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.
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.
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.
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, 83 S.Ct. 1322, 10 L.Ed.2d 428 (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:
[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.
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 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 (), 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...
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