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Wednesday, June 19, 2013

Drivers' Records Protected from Attorney Solicitation

In another case issued on June 17, 2013, the U.S. Supreme Court ruled that the federal Drivers’ Privacy Protection Act (DPPA) prohibits attorneys from using protected data from state drivers’ databases to solicit clients.  Maracich v. Spears.
In this case, plaintiffs’ attorneys had obtained data from the South Carolina DMV through freedom of information requests in order to identify potential plaintiffs for a class action lawsuit.  The plaintiffs’ attorneys then sent out a mass mailing to the drivers, inviting them to contact the firm to discuss potential representation.  The defendants’ lawyers filed a lawsuit against the plaintiffs’ lawyers for violating the DPPA, which prohibits the use of a driver’s information from a state DMV without prior permission from the driver.  The plaintiffs’ lawyers defended their actions by citing the DPPA’s “litigation exception” which allows the use of driver data in court actions, including any investigation in anticipation of litigation.
In a 5-4 opinion, the Court rejected the plaintiffs’ lawyers argument, holding that client solicitation does not fall within the litigation exception.  Although the Court acknowledged that the litigation exception was very broad, it determined that Congress did not intend the exception to include client solicitation. Instead, the litigation exception was intended to apply to work done by an attorney in representing clients rather than in soliciting business. The Court supported its decision by referencing another DPPA exception that allows use of DMV information for advertising and other solicitation, but only if the driver consents to use.
Four Justices dissented, arguing that the litigation exception was broad enough to include the lawyers’ use in this case - to sign up clients for a pending or impending lawsuit.
Some municipal lawyers have expressed concern that the Court's ruling in this case may foreshadow how it might decide Senne v. Palatine, which is scheduled for conference on June 20th.  This case involves a decision by the 7th Circuit Court of Appeals finding that a police department's practice of placing citations on cars violated drivers' privacy protections under the DPPA.  We reported on that decision on the blog previously, and will will be watching that case closely. 
In full disclosure, Ancel Glink filed an amicus brief in the Senne case on behalf of the Association of Governmental Risk Pools (AGRIP).


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