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Lawyers can’t use state DMV records to solicit auto accident victims under ‘litigation’ exception to Federal Driver Privacy Act

July 10, 2013 by Steven M. Gursten

Will recent U.S. Supreme Court Ruling help Michigan’s lawyer solicitation problem,  given similarities between federal and Michigan laws?

I’ve been writing about a rampant practice in Michigan, where injury lawyers look up auto accident victims’ police reports and then use the information to mail them lawyer solicitation packages. Some even have non-lawyer front groups of chiropractors or “auto accident legal rights” (that these lawyers may have in turn helped create) call these accident victims at home or even knock on their doors hoping to drum up business.

A package of bills aimed at stopping lawyer solicitation is the works in Michigan. You can read about HB 4770 and HB 4771 here. Meanwhile, the U.S. Supreme Court has recently tackled this problem on a national level.  And according to a new case from the U.S. Supreme Court, there are limits as to how far attorneys can go in their efforts to solicit new clients.

A limit to lawyer solicitation was recently identified by the U.S. Supreme Court in a ruling interpreting the federal “Driver Privacy Protection Act” (DPPA), which prohibits disclosure of drivers’ personal information by state Departments of Motor Vehicles (DMV) and other state agencies and persons.

When a group of South Carolina lawyers obtained drivers’ personal information from the state’s DMV and used that information to solicit new and prospective clients, drivers cried foul and the Supreme Court agreed.

In Maracich v. Spears, the U.S. Supreme Court ruled that the “litigation” exception to the DPPA’s disclosure prohibition, which the lawyers relied on as a justification for their actions, does not allow attorneys to obtain and use drivers’ personal information to solicit new and prospective clients:

“Solicitation of prospective clients is not a permissible use ‘in connection with’ litigation or ‘investigation in anticipation of litigation’ under [the litigation exception] of the DPPA.”

Although the Supreme Court’s Maracich ruling involved the federal DPPA, it is likely that Michigan drivers will benefit from its protection of drivers’ privacy, because Michigan’s “Driver Privacy Protection Act” was inspired by, modeled on and is nearly identical to the federal law.

Driver Privacy Protection Act

The federal DPPA prohibits state DMVs from disclosing drivers’ personal information (which includes a driver’s name, address, phone number and driver’s identification number). And the federal DPPA prohibits “persons” from obtaining and disclosing drivers’ personal information.

Michigan’s Driver Privacy Protection Act (which is set forth in MCL 28.298 (1) and (3), 257.208c (1) and (3), and 324.80130a (1) and (3)), contains similar disclosure prohibitions for “the secretary of state,” “any other state agency” and other recipients.

The federal DPPA, which prompted passage of the Michigan law, was enacted in 1994, at least in part, to curb “the States’ common practice of selling personal information to businesses that used it for marketing and solicitations.”

‘Litigation’ exception

One of the 14 exceptions to the federal DPPA’s disclosure prohibition is the “litigation” exception which provides that drivers’ personal information may disclosed by the DMV and obtained by people, such as lawyers, if:

The information is going to be used “in connection with any civil … proceeding … including … investigation in anticipation of litigation …”

Michigan’s “litigation” exception to its DPPA, which can be found at MCL 28.298(3)(d), 257.208c(1)(d), 324.80130a(3)(d), is nearly identical to the federal exception.

Solicitation is not litigation

In ruling that “an attorney’s solicitation of clients” did not qualify as “litigation” for purposes the DPPA’s “litigation” exception, the Supreme Court in Maracich made the following observations:

  • “The ‘in connection with’ language … must have a limit. A logical and necessary conclusion is that an attorney’s solicitation of prospective clients falls outside of that limit.”
  • “In light of the types of conduct permitted by the subsection, the ‘in connection with’ language should not be read to include commercial solicitations by an attorney.”
  • “An interpretation of ‘investigation [in anticipation of litigation]’ to include commercial solicitation of new clients would expand the language in a way inconsistent with the limited uses given as examples in the statutory text.”

When is a disclosure or use ‘litigation’ related?

Acknowledging that the request and use of drivers’ personal information may simultaneously serve both litigation-related and non-litigation-related purposes, the Supreme Court in Maracich said the determinative factor for purposes of the DPPA’s “litigation” exception is:

“Where a reasonable observer could discern that the predominant purpose of obtaining, using or disclosing protected personal information was to initiate or propose a business transaction with a prospective client, [the DPPA’s “litigation” exception] does not exempt the solicitation.”

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