Lawyers Can’t Use DMV Records to Solicit Clients

     (CN) – Lawyers cannot use confidential information from state motor vehicle records to solicit clients, the Supreme Court ruled Monday in a 5-4 opinion.
     The high court reversed the 4th Circuit’s ruling for a group of South Carolina lawyers who used data gleaned from Department of Motor Vehicle records to target potential plaintiffs for lawsuits against car dealerships.
     Citing the “litigation exception” to the Driver’s Privacy Protection Act of 1994, trial lawyers retrieved the names, addresses and phone numbers of thousands of car buyers.
     The buyers filed a federal class action, claiming the mailings they received from lawyers violated their privacy rights.
     The high court narrowly agreed.
     “[A]n attorney’s solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception,” Justice Anthony Kennedy wrote for the 5-4 majority.
     The lawyers claimed that the law allowed them to use the protected information “in connection with any civil, criminal, administrative, or arbitral proceeding,” including “investigation in anticipation of litigation.”
     But the justices said solicitation “is distinct from other aspects of the legal profession,” a view that’s backed up “by the words of the statute itself; by formal rules issued by bar organizations and governing boards; and by state statutes and regulations that govern and direct attorneys with reference to their duties in litigation, to their clients, and to the public.”
     “An additional reason to hold that (b)(4) does not permit solicitation of clients is because the exception allows use of the most sensitive kind of information, including medical and disability history and Social Security numbers,” Kennedy wrote. “To permit this highly personal information to be used in solicitation is so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from DPPA liability in this regard.”
     The majority also rejected the attorneys’ claim that the litigation exception could be used to solicit new clients for existing litigation. This would have allowed lawyers to file “placeholder” lawsuits to retrieve personal DMV information solely to solicit clients for those actions.
     “Drawing the line between solicitations related to an existing proceeding and those that are not is not a tenable distinction,” Kennedy wrote. “The proper solution is to draw the line at solicitation itself.”
     Justices Clarence Thomas, Stephen Breyer and Samuel Alito, and Chief Justice John Roberts joined the majority opinion.
     In a dissenting opinion, Justice Ruth Bader Ginsburg said the lawyers’ use of the information “fell squarely within the litigation exception.”
     “This court’s holding, exposing respondents not only to astronomical liquidated damages, but to criminal fines as well, is scarcely what Congress ordered in enacting the DPPA,” she wrote.
     The dissenting opinion was joined by Justices Antonin Scalia, Sonia Sotomayor and Elena Kagan.

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