Florida Supreme Court Is Closely Divided in Unauthorized Practice of Law Decision
The relationship between access to justice and the unauthorized practice of law was explored in the Florida Supreme Court's recent 4-3 decision that a traffic ticket app developed by a startup amounted to the unauthorized practice of law (UPL).
The app, TIKD, connected qualifying ticketed drivers to Florida lawyers who were hired and paid by TIKD to represent the drivers. If the drivers and lawyers agreed to proceed, TIKD would charge the driver a percentage of the ticket's face value while paying the lawyer a flat fee and paying any court costs or fines assessed to the driver.
The Court's Decision
In an opinion signed by three members of the seven-member court, with a fourth concurring in the result, the 4-3 majority concluded that TIKD's conduct constituted UPL under Florida law. Using the framework applied in State ex rel. Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962), vacated on other grounds by 373 U.S. 379 (1963), the majority concluded that TIKD had engaged in UPL due to what the majority considered an impermissible degree of control by TIKD over the attorneys hired to represent the drivers, finding specifically that:
- TIKD screened all traffic tickets and selected which matters, and correspondingly which legal issues, got assigned to an attorney, as well as the timing of that assignment.
- TIKD's Terms of Service, not a licensed attorney, designated when an attorney-client relationship was initiated.
- The fee paid to each attorney was set and collected by TIKD.
- The contract TIKD entered into with each attorney required that the attorney provide legal services in accordance with the "TIKD Guidelines," which "describe the Attorney's responsibilities in providing Services to each [driver]."
The majority also expressed additional concerns, including the potential for the app to impact the quality and timeliness of legal services provided to drivers, the potential for conflict between TIKD's interest in profits and the lawyer's ethical obligation to act in the client's best interest, and the fact that funds held by TIKD, as a nonlawyer, would not be held in a trust account. The majority would thus appear to have focused on what it considered an unacceptable "bifurcation of responsibilities between lawyers and nonlawyers with respect to the provision of legal services," which it found constituted UPL under unanimous precedent in Florida.
As noted, three members of the court signed the opinion. A fourth concurred on the ground that prior Florida precedent required a finding of UPL and that any changes to the UPL standard should result from formal rulemaking rather than case-by-case analysis, which was also echoed in a footnote of the majority. In contrast to the majority's finding that TIKD's advertising was likely to lead consumers to misunderstand that utilizing TIKD's services is equivalent to hiring an attorney, and its finding that TIKD's services posed a substantial risk of harm to the public, the strongly worded dissent noted the absence of any proof of harm to any drivers caused by TIKD or the lawyers in the form of complaints. The dissent also noted the difficulties that today's lawyers confront in trying to embrace and incorporate the benefits of new technology while also meeting and serving legal needs that may not previously have been met.
Takeaways and Considerations
The Florida Supreme Court's decision unquestionably establishes what presently constitutes UPL in Florida. Nonetheless, other states may well choose a different approach where an app operated by a nonlawyer offers legal services and contracts with attorneys to provide representation to its customers.
The decision illustrates the varied perspectives regarding emerging technologies and the role of nonlawyers in the provision of legal services, something that the industry should continue to closely watch. While the majority and concurring opinions noted the potential for technology to provide for greater access to the legal system in certain areas, they also expressed the need for a cautious approach to protect the public as new models emerge.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.