Josh King on the Tikd antitrust case against the Florida Bar

Posted in Ethics, Policy

The other day, I wrote on my personal blog about the questionable intersection between ethics opinions and antitrust. My open question – are the Bars paying attention to their potential antitrust liability for advisory ethics opinions that affect competition? – seems like it may get closer to an answer. A lawsuit has now been filed against the Florida Bar, alleging antitrust violations related to, in part, an advisory ethics opinion!

The plaintiff in the case is “Tikd,” an innovative service that helps consumers get legal help – with highly predictable pricing and outcomes – when dealing with routine traffic tickets. According to TikD, attorney participation in its service has been chilled by an interminable investigation into its practices and an ethics opinion that advises Florida Bar members that TikD runs afoul of unlicensed practice of law and fee-splitting rules.

Like many Bars, Florida has long provided members with “safe harbor”-type guidance via ethics opinions. And this kind of extra-careful approach is actually a good thing when it comes to a lot of the ethics rules. As I often tell attorneys, if you feel like you’re splitting hairs or facing a close call when it comes to client confidences or protecting your client’s assets, you’re already lost. You should ALWAYS err on the side of caution in those matters. And ethics opinions do a great job of helping attorneys err on the side of caution.

The problem comes when ethics opinions apply this same belt-and-suspenders approach to attorney marketing or matters impacting competition (including UPL).

Here’s why: the rules dealing with attorney-as-fiduciary (whether money or confidences) only ratchet one-way. There’s no detriment to clients if attorneys over-comply; what client WOULDN’T want their attorney to be super-cautious when it came to their money or secrets?  But that’s not the case for attorney marketing or competition. Applying the same level of caution in these areas is actually BAD for the public, as it deprives them of information and options when it comes to legal services.

How’s that? Because conscientious lawyers – the kind who ask for, read, and pay attention to ethics opinions – will pull back from communicating to the public or engaging with innovative services like TikD if the Bar takes an uber-conservative interpretation of its rules. That’s a bad thing for consumers and lawyers alike.

While the Bars are wired to give conservative advice, what they really should be doing in these areas is not opining at all. Instead, they should adopt policies that actively encourage innovation in the delivery of legal services, while still aggressively enforcing the Rules whenever the interest of the public is actually at risk.