Can an App Really Be Engaged in Practicing Law? The Florida Supreme Court Says Yes. I Say No.
On October 14th, The Florida Supreme Court found that TIKD, an app that linked traffic-ticket defendants with lawyers to represent them, was engaged in the unauthorized practice of law. The company was enjoined from operating in Florida and has paused its services elsewhere.
At issue in this case was the brave new world of the legal profession: how will courts respond to the way that technology is rapidly changing the traditional equations for deciding what is a practice of law?
TIKD served jurisdictions with high rates of traffic ticket dismissals, including in Washington, D.C. Users would upload a picture of their traffic ticket to the TIKD app and were charged a percentage of the ticket’s value to connect them with a licensed lawyer. This initial fee covered all costs associated with the lawyer’s representation.
The Court acknowledged that TIKD is not a law firm, and its CEO is not a lawyer. In barring the app from operating in Florida, Justice Alan Lawson pointed out that TIKD advertised and sold legal services when only licensed attorneys are “authorized to act like a law firm.” As a nonlawyer business, the Court found that TIKD “lacks the skill or training to ensure the quality of services provided to the public,” potentially harming clients. This risk of harm is exacerbated when nonlawyer companies like TIKD level profit demands against the “professional obligations of attorneys to act in the interests of a client.”
In a powerful dissent arguing that the app only acted in an administrative capacity without providing legal services itself, Justice John Couriel stated “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.”
He reminded the Court that the “single most important concern” in defining the practice of law “is the protection of the public from incompetent, unethical, or irresponsible representation.”
These rules—which exist in every jurisdiction—are intended to prevent non-lawyers from passing as qualified legal professionals subject to the high ethical standards, competency requirements, and discipline of the bar.
But in the case of TIKD, licensed lawyers were the only ones providing representation, and there wasn’t any evidence indicating that clients were harmed. To the contrary, by making the litigation process more affordable, it actually increased access to the justice system. Instead, what was really protected by the Florida Supreme Court was something else: “the business interests that have come to rely on the way things have generally been.”
I argue it is time for a change.
First, rules barring the unauthorized practice of law are keeping innovators out. Courts across the country have used the unauthorized practice of law to put technologies that offer legal services out of practice. These include platforms like “Quicken Family Lawyer,” software that offers legal forms and instructions on filling them out, and Lienguard, Inc., a website that helps consumers prepare lien claims. Companies like Avvo, RocketLawyer, and LegalZoom have publicly battled various state bars for years. These platforms each have the potential to disrupt the legal market by cutting down the cost of legal services, making them more accessible to the masses.
Second, for that reason, their exclusion from the marketplace disproportionately harms low-income litigants. Four out of five low-income litigants are unrepresented in state courts, making them more likely to lose. That number is only growing in low-rung specialized courts that focus on issues like landlord-tenant, traffic, and family law. In the case of TIKD, the litigation process was made more accessible to those who could not afford it.
States must reform their rules to account for these two harms. So far, Arizona and Utah are spearheading the charge: both states have amended portions of their rules and enacted programs to test the impact of new business models in the law.
Arizona instituted the creation and regulation of “alternative business structures,” which allow businesses to provision lawyers in administering legal services. Similarly, Utah’s Office of Legal Services Innovation introduced a “regulatory sandbox” program with the same goal of testing different legal business structures to inform future policy in this area. Entities approved in the “sandbox” include Hello Divorce, which allows consumers to prepare and file divorce forms online, and Off the Record, Inc., which follows a similar model as TIKD: “snap a photo of your ticket, answer a few questions, and get matched to an experienced lawyer.”
As Justice Louis Brandeis stated, “a single courageous State may, if its citizens choose, serve as a laboratory and try novel economic experiments without risk to the rest of the country.” Arizona and Utah’s reform efforts are outstanding examples of how courts can update their doctrine of the unauthorized practice of the law to fit the changing technological landscape. If other states follow these efforts, this would allow for an increase in innovation and accessibility to our legal system.
Assistant Legal Impressions Editor, Georgetown Law Technology Review; Georgetown Law, J.D. expected 2023; Vanderbilt University, B.A. 2017. © 2021, Julia Logue.