“Ethics” Rules Shape the Legal Services Market: To Protect Clients? Or to Protect Lawyers from Unwanted Competition? — A Smartphone App that “Practices Law”? — Part 3 of 5

THE POINT

1. TIKD was a legitimate, constructive solution to a legal need faced by the public that the legal profession seeks to shut down on “ethical” grounds.

2. Legal “ethics” should be a shield to protect clients from fraud or abuse, not a sword for the legal profession to attack unwanted competitors.

DISCUSSION

Let’s say you were driving in Miami (or elsewhere in South Florida, or Tampa metro area, or Washington, D.C., or specified counties in Maryland or California), and a police officer gave you a ticket for speeding.

Say it was for $200.

Until legal action by the Florida Bar and a traffic ticket lawyer forced it to suspend operations, a Coral Gables, Florida company called TIKD would offer you the following:

  • You could purchase their app for your smartphone using a credit card.
  • Purchase price for the app would be an amount specified by TIKD less than the face amount of the traffic ticket — for a $200 ticket, this would have been around $150 – $160.
  • TIKD then would hire a lawyer in private practice, who specialized in defending against traffic tickets, to represent you (no one inside TIKD, including Christopher Riley, its founder, was an attorney).
  • First promise to the customer from TIKD: On the traffic ticket, you would pay no more than what you had already paid TIKD — not to TIKD, not to the court (i.e., TIKD would pay the court any amount over the price of the app).
  • Second promise to the customer from TIKD: TIKD reported a 95% success rate on avoiding “points” penalties — if you were in the 5% or so who ended up penalized with “points” from an eventual court judgment, then (1) TIKD would refund 100% ($150-$160 in this example), and (2) TIKD would, on your behalf, pay the full amount of any court-imposed fine in connection with your traffic ticket.

 …

Bearing in mind that the stated purpose of legal “ethics” rules enforced by state bar authorities is to protect the public from abuse or fraud at the hands of lawyers, consider the legal profession’s response to TIKD’s offering. 

The Florida Bar accused TIKD of violating legal “ethics”. This led to a March 4, 2020 oral argument before the Florida Supreme Court.

Now pending a decision.

Meanwhile, TIKD has suspended its services.

TIKD and its founder have been subject to this enforcement proceeding since January 2018. Not to mention litigation brought by a Florida traffic ticket lawyer.

… 

The Florida Bar’s, and the traffic ticket lawyer plaintiff’s, case against TIKD:

1. By hiring a lawyer, and by putting a cap on the penalty the ticketed customer would have to pay, TIKD was “practicing law”.

2. TIKD, by promising to pay any court fine that exceeded the price of the app (and by paying all of the penalty if TIKD did not succeed in avoiding “points” being imposed on the customer), was paying the customer’s fine — and lawyers aren’t allowed to pay customer’s fines.

TIKD’s response:

1. TIKD was not a law firm. It was a business (run by nonlawyers) that hired lawyers to represent TIKD’s customers in traffic court.

2. So TIKD did not offer legal services and it gave no legal advice.

Christopher Riley, TIKD’s founder and CEO, put it this way:

“TIKD is a suite of services designed to make the process of dealing with your traffic ticket simpler and cheaper.”

TIKD’s lawyer argued to the Florida Supreme Court that TIKD, as a commercial service that hired lawyers on behalf of its customers, did nothing more than a liability insurer does when it hires a lawyer on behalf of one of its policy holders who’s a defendant in a lawsuit covered by its policy, or when that insurer pays out on a court judgment against the policy holder.

Regardless of the merits, however, and pending decision by the Florida Supreme Court, the legal profession in the TIKD case is successfully deploying the rules of legal “ethics” to defeat — for a time at least — a would-be competitor whom they don’t want to face in the market.

Therefore, again, I ask:

“Might some of these ‘ethics’ rules that regulate the market for legal services actually have more to do with protecting lawyers from unwanted competition than they do with protecting clients?”