Something TIKD this way comes.

So, about a week ago, the Florida Bar and The Ticket Clinic (a Florida law firm that somehow can manage to keep the lights on by specializing in representing people regarding traffic tickets) were sued in federal district court by something called TIKD.  TIKD is, at heart, an app for your smart phone.

The lawsuit alleges that the bar and the law firm have combined to damage TIKD in its business endeavors in violation of antitrust law and other unfair competition law.  Others have already written a bit about this development, but I still cannot resist chiming in because, though the litigation will likely end up amounting to nothing truly impactful, the underlying substance (or lack thereof) of the area of law being battled over with potentially such high stakes for the profession could easily be made into the stuff of a dark fantasy novel.

While others have written about this new federal court lawsuit where TIKD is the plaintiff, and there is some decent media coverage of it at The Washington Post and in some Florida news outlets, I want to just flag for your attention the existence of another lawsuit in Florida involving TIKD, but that was brought against TIKD seven months earlier in state court by one of the defendants in the TIKD suit, The Ticket Clinic.

You can read that full lawsuit at this link.  The gist of it though is also one for unfair competition.  The law firm, Gold & Associates d/b/a as The Ticket Clinic sued TIKD and its two owners claiming TIKD engages in false and deceptive advertising and is itself engaged in the unauthorized practice of law.  You can judge for yourself, but those particular claims to me seem dubious at best.  TIKD seems to do exactly what it advertises it will do and hires lawyers rather than tries to practice law.  But in the midst of those questionable claims, the suit still finds the nub of a true problem: unfair competition for lawyers trying to compete with (rather than work with) TIKD.

While it is the suit TIKD has filed pursuing the Florida Bar and The Ticket Clinic for antitrust violations that is currently getting all the media attention — folks who want to be “disruptors” in the legal industry are certainly using it as an opportunity to attack the entire concept of the regulation of the practice of law — the lawsuit filed by The Ticket Clinic as plaintiff forces a reader to think about the flip side of that problem by pointing out that what TIKD is doing to market its service, and convince people to use it, is making guarantees and promises that lawyers are prohibited from making under the ethics rules.

Specifically, paragraph 12 of the complaint points out a number of aspects of the TIKD business model that allow for unfair competition, which includes TIKD:

b) making guarantees to pay financial penalties imposed by courts and/or the “full cost of their ticket”;

[snip]

g) promising to “cover the full cost of your ticket no matter the price – even if the cost is higher than what you paid us;”

Paragraph 28 of the complaint further drives the point home:

In promising to pay a fine if they lose at no additional cost, TIKD, RILEY and BERTHOLD make a promise that a lawyer or law firm cannot possibly make, and they essentially “rob Peter (those persons whose cases are dismissed with no fine or court cost after
paying TIKD 75-80% of the fine stated in the citation) to pay Paul (those persons who are directed to pay the fine in full or greater, with costs)” which is a “house of cards” that will eventually fall, leaving clients with no remedy.

The story in The Washington Post also helpfully reinforces that these are important aspects of what makes TIKD a desirable service for which to pay:

TIKD, which launched in February, works this way in Florida: A driver who gets a traffic ticket can contact the company on a cellphone and be offered a one-time charge below the amount of the ticket. TIKD connects the driver with an independent attorney for no additional costs or fees, and the attorney handles the case without the driver having to appear in court.

If the ticket is not dismissed, TIKD pays any fines, and if the driver gets points on his or her license, TIKD will fully refund the one-time charge.

It is undeniably correct that the ethics rules would never let a lawyer make the same arrangements with a client.  It also seems pretty clear that without the ability to make those financial guarantees the app would lose pretty much all of its luster.  Thus, regardless of what you may think about the merits of any claim that The Florida Bar and The Ticket Clinic are engaged in some coordinated effort to hurt TIKD, it appears undeniably correct that there is a fundamentally unfair competitive advantage to being able to make the kind of financial guarantees that the app is making and which any lawyer would have to risk their license to match.

A reckoning in the legal industry is going to have to take place at some point relatively soon, but part of that reckoning absolutely has to be a level playing field in the area of providing legal services.  Either the same rules and restrictions will have to apply to all those operating in the space or those rules ought to apply to no one operating in the space.

The notion that the reckoning could be ushered along more quickly because of a fight over an area of legal representation that most firms have first-year associates handle for free as a perk for clients (i.e. getting speeding tickets dismissed) and involves a firm run by a lawyer who has been embroiled in litigation over a nearly $20,000 tab at a strip club and whose firm is being investigated for taking money to falsify traffic school certificates is just absurd enough to fit in with the rest of the fundamental absurdity that plagues 2017.

5 thoughts on “Something TIKD this way comes.

  1. Why couldn’t lawyers offer the same deal TikD does? It’s just a flat fee and a refund policy.

    As for leveling the playing field, the Bars could get in front of this by simplifying their rules and dispensing with over-protective ethics opinions on marketing and business development.

  2. Thanks Josh. But, no, it isn’t just a flat fee and a refund policy. The service says it will be pay the fines if they can’t get the ticket dismissed. No lawyer would be allowed to do that for their client under the ethics rules, and I don’t think you could craft a rule work around that would allow something like that wouldn’t also allow a lawyer at say Bendini, Lambert & Locke to take on a products liability case for a client and say, pay me a $500,000 flat fee for this representation and if we aren’t able to get the case dismissed, we will pay any damages awarded by the court.

  3. Which ethical rule are you referring to? A lawyer may not be able to guarantee a result (‘your ticket will be dismissed’), but what rule prevents a lawyer from taking on the financial downside of an unsuccessful result (‘I will pay your fine if your ticket is not dismissed’)? Lawyers make conditional guarantees all the time – ‘no fees unless you prevail.’

    1. Pete,

      Most jurisdictions have adopted a version of RPC 1.8(i) like the ABA Model Rule and it would not permit the agreement to pay the fine if a fine is levied because that would be a proprietary interest in the subject matter of the representation. The model version of that rule reads:

      (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

      (1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and

      (2) contract with a client for a reasonable contingent fee in a civil case.

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