Virginia lawyers may not mine state motor vehicle records to solicit Virginia drivers by mail after they are charged with DWI, reckless, or any other driving violation.

            That is the result of the SCOTUS decision in Maracich v. Spears, decided June 17, 2013.  According to Justice Kennedy, writing for the 5-4 majority, South Carolina trial lawyers may not utilize motor vehicle records to solicit new clients “in anticipation of litigation” without running afoul of the federal “Driver’s Privacy Protection Act”.

           Here are the applicable laws (emphasis supplied):

18 U.S.C. Sec. 2721 Prohibition on release and use of certain personal information from State motor vehicle records (United States Code (2011 Edition))

  (a) In General.—A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity:

    (1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; …

  (b) Permissible Uses.—Personal information referred to in subsection (a) … may be disclosed as follows: …

    (4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court …

                               +++

18 U.S.C. Sec. 2725 Definitions (United States Code (2011 Edition))
In this chapter— …

  (2) “person” means an individual

  (3) “personal information” means information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status. [Footnote omitted].

         This means that attorneys trolling for business may learn from DMV the number of people charged with drunk driving in a particular zip code in a given month, but may not obtain a name and address from DMV in the hope of procuring a new client.[1]

            Names and addresses of defendants are publicly available in General District Court traffic cases, making DMV records unnecessary.  Thus, it appears that at least in Virginia, the traffic defense bar has an alternative means of identifying and soliciting prospective clients without violating federal law or Rules 7.2 or 7.3 of the Virginia Professional Guidelines [except for the blanket prohibition against in person solicitation of professional employment for compensation in a personal injury or wrongful death claim], in effect side-stepping the privacy protection that the Driver’s Privacy Protection Act was supposed to provide.



[1] In Maracich, attorneys were contemplating a class action case against car dealerships.  The data they sought from the South Carolina DMV would not have been available from court records.  But the point of the SCOTUS majority is that the conduct was trolling:  The lawsuit did not exist and might never exist, depending on the DMV response.