In 2007, a car dealership’s director of sales and marketing received a letter stating that if he had been charged unlawful fees when purchasing a car, he could join ongoing litigation against several South Carolina car dealerships, including his own. Edward Maracich—along with 34,000 other South Carolina residents—received this communication labeled “ADVERTISING MATERIAL” from state-licensed trial lawyers. The lawyers had been seeking to determine whether the recipients had been charged illegal fees when purchasing a car and directed them to return an enclosed reply card if they wished to participate in the litigation. They had obtained the information of the potential plaintiffs from the South Carolina DMV by submitting several Freedom of Information Act (“FOIA”) requests to identify people who had purchased a vehicle from a South Carolina dealership within specified time periods. A federal statute enacted in 1994, the Drivers’ Privacy Protection Act (“DPPA”), prohibits obtaining personal information from motor vehicle records without the person’s express consent. However, the lawyers explained in their FOIA requests that the pursuit of the personal information fell under the “litigation exception” of section (b)(4) of the DPPA, which permits use of personal information “for use in connection with . . . [and] . . . in anticipation of litigation.” 

After learning that the lawyers had contacted more than 34,000 people, Maracich and other South Carolina residents filed a class-action lawsuit in the U.S. District Court for the District of South Carolina alleging that the trial lawyers had violated the DPPA by obtaining personal information from motor vehicle records without the express consent of the class members. The trial lawyers won in both the District and Circuit Courts. The case made its way to the Supreme Court, where the trial lawyers argued that the communication was lawful—because it fell under the litigation exception of section (b)(4) of the DPPA—and the South Carolina residents argued that it was impermissible lawyer solicitation—not covered by the litigation exception. The Supreme Court sided with the residents, holding that the DPPA’s protections do not encompass the use of personal information for solicitation of legal clients.

Lawyer solicitation has long been considered questionable, even “concern[ing].” Advocates arguing in favor of or against lawyer solicitation—as with any other legal issue—face the challenge of crafting stories that both serve their client and adhere to factual accuracy. These persuasive stories, however, can sometimes stretch the truth to a point that risks violating ethical rules, walking a fine line between the obligations requiring candor to the tribunal and diligent and zealous client representation. The case of Maracich v. Spears provides a valuable lens through which to examine these ethical tensions. By analyzing the parties’briefs in this case—focusing on their introductions, factual statements, and statutory arguments—this Note explores how lawyers navigate the fine line between persuasive storytelling and the duty of honesty to the court.

This Note uses the narrative and cluster methods of rhetorical analysis to emphasize how the parties’ briefs before the Supreme Court in this case create dueling “client-centered narratives” about the role of lawyers and the practice of client solicitation, potentially raising ethical issues by blurring the lines between zealous advocacy and candor to the tribunal.

Part I discusses the ethical obligations of lawyers to the court, their clients, and the profession and it questions whether the parties in Maracich violated those duties in creating their client-centered narratives. Part II explains the artifacts’ background, including the circumstances that gave rise to the Maracich litigation. Part III briefly summarizes the rhetorical methods used in this analysis. These are the narrative method—which aims to identify the objective, characters, plots, settings, themes, and functions of the narratives—and the cluster method—which looks at the key terms and analyzes how the clusters around them shape a particular picture in the reader’s mind.

Part IV analyzes the artifacts according to the methods described in Part III, and it reveals that each side crafts a narrative most beneficial to their client. Petitioners (the South Carolina residents) paint a picture of privacy violated: the trial lawyers as unscrupulous opportunists who are sending out “mass solicitation” to line their pockets. Respondents (the lawyers) portray themselves as zealous advocates, akin to righteous heroes, who are investigating and fighting for the rights of thousands of individuals. Finally, Part V concludes by affirming that the client-centered narratives employed in the briefs do not constitute ethical violations. Rather, these narratives fall squarely within zealous and diligent advocacy because, though creative and persuasive, they remain truthful and factually accurate and thus do not violate the duty of candor to the tribunal.

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