Monday, April 29, 2002
DMV Must Give Home Address to Lawyer for Collection Agency—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Department of Motor Vehicles must give residence addresses of licensees to the attorney for a collection agency, for use in tracking down debtors who may be sued in small claims court, although the attorney may not disclose the addresses to his client, the Third District Court of Appeal has ruled.
A divided panel ruled Thursday that DMV must issue a “commercial requester” code to Robert Pohls, a Walnut Creek lawyer who represents Ticket Track California, Inc. The company collects unpaid parking charges through demand letters and occasional small claims actions.
The requester code permits the person or entity to which it is issued to obtain residence address information, which has generally been confidential since the passage of DMV privacy legislation in 1989.
The statute contains several exceptions to the rule of confidentiality. One exception, set forth in Vehicle Code Sec. 1808.22(c), allows release of information “to an attorney when the attorney states, under penalty of perjury, that the motor vehicle or vessel registered owner or driver residential address information is necessary in order to represent his or her client in a criminal or civil action which directly involves the use of the motor vehicle or vessel that is pending, is to be filed, or is being investigated.”
Pohls explained in his request that his intent was to obtain the addresses and give them to Ticket Track so that it could send demand letters and, if necessary, bring suit in small claims court. Sacramento Superior Court Judge James Timothy Ford ruled that the request qualified under the statute and ordered the department to issue the requester code.
DMV appealed, and won a partial victory when the justices reversed Ford’s ruling to the extent that it would allow Pohls to share the address information with Ticket Track.
Justice Rodney Davis, writing for the majority, rejected the contention that, because attorneys cannot appear in small claims court, the filing or potential filing of small claims actions does not fall within the attorney exception.
“If attorney Pohls, as counsel for Ticket Track, obtains confidential DMV residential address information for an unpaid parking charge and sends a demand letter for payment, that activity involves the representation of Ticket Track in a potential action that directly involves the use of the motor vehicle,” the jurist wrote.
The statute, he noted, “uses the broader verb ‘represent’ rather than the more limited verb ‘appear.’”
But while the statutory language supports Pohls’ right to obtain the information, it clearly does not give him the right to share the data with Ticket Track, Davis said.
“This language is plain,” the jurist wrote. “The confidentiality exception applies ‘to an attorney.’...It does not apply to the attorney’s client. “
The statute is similar to other laws and rules which allow an attorney to obtain information on condition that it be used for a limited purpose and not be shared with the client, the justice said.
Justice Harry Hull concurred, but Justice Richard Sims III dissented.
Sims argued that Pohls has no right to the information because he will not use it in a civil action. Small claims actions do not qualify, he said, because attorneys do not appear in small claims court.
Attorneys may appear in small claims appeals, he acknowledged, but pointed out that as a plaintiff, Ticket Track cannot appeal if it loses.
Exceptions to confidentiality, he argued, must be read narrowly in order to fulfill the Legislature’s expressed intent to protect privacy unless “absolutely necessary for society’s welfare.”
The dissenting justice distinguished State Farm Mut. Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076, which held that an insurer’s attorney was entitled to obtain the address of the person who purchased a vehicle on which it paid a claim. The seller had acquired the vehicle from the insured on consignment, and title was in dispute.
“It is true an attorney may obtain DMV information to investigate the filing of a civil action,” Sims wrote. “...But that does not eliminate the express statutory requirement that the information is necessary to allow the attorney to represent the client ‘in’ an action that might result from an investigation.”
An attorney, he said, does not represent a client “in” a small claims action, even if the lawyer writes a demand letter that precedes the filing of the suit.
The ruling, he said, will create a huge hole in the privacy legislation. “All collection agencies have attorneys, and the attorneys could routinely obtain DMV information in cases that directly involve the use of a motor vehicle or a vessel,” Davis wrote.
Interpreting the law as allowing lawyers to obtain the information but prohibiting them from passing it on to their clients “is, frankly, odd,” the jurist wrote, since lawyers normally have a duty to share information with their clients when it relates to the subject of the representation. “Rather, a more plausible construction of the statute is that it contains no restriction on an attorney’s sharing information with a client but instead restricts the attorney’s access to confidential information to situations where the attorney is appearing or will appear ‘in’ an action,” the jurist said.
William R. Warne, an appellate lawyer for Ticket Track, said the firm was “gratified by the decision,” while disappointed the panel disagreed with the trial judge’s conclusion that its lawyer could share the information. A decision will be made later this week as to whether to seek Supreme Court review of that aspect of the ruling, he said.
DMV officials could not be reached for comment.
Copyright 2002, Metropolitan News Company