I have come across several cases recently where a plaintiff, or more likely the plaintiff’s lawyer, had hired a “vendor” or a contractor to serve process abroad, and where it seemed clear to me that the “vendor” had given the client bad advice or where the vendor had not done a good job effecting the service. For example, I’ve seen vendors submitting requests for service to a foreign central authority and then, after the client asks why service hasn’t been completed, informing the client that service in the country in question might take a year. The client then moved for leave to serve by alternate means, which is perhaps what the client should have done in the first place with its money. Or else I’ve seen a vendor lash out at a foreign central authority’s refusal to execute a request for service rather than try to understand the legal basis for what the foreign central authority is saying. Instances like this raise the question: to what extend do the things we do in international service of process constitute the practice of law? Or conversely, to what extent are the “vendors” doing things they shouldn’t be doing, unless they are lawyers? Here are some reflections.
- The act of serving process is, of course, not the practice of law. When I send papers to the sheriff or even a private process server with instructions to serve a defendant “in hand,” and the sheriff or the process server does what I ask, that is obviously correct. The act of service itself is purely ministerial. I think you can go even further and say that in jurisdictions where everyone knows service can be made either by personal delivery or by leaving the summons at the defendant’s residence, if I tell the sheriff or the process server to serve John Doe, who lives at 123 Main Street, in general the sheriff or process server can use one or both of the typical methods without explicit instructions.
- The reason why these examples are unproblematic is that there is no real legal judgment involved. If a lawyer engages a process server to do the ordinary sort of process, the process server acts in a purely ministerial role. If I have decided that I want to serve process under the Hague Service Convention via a request to a foreign central authority, the act of filling out the request for service form and transmitting it may be similarly ministerial—though completion of the Summary of Documents form appended to the request form might not be similarly ministerial, and though identification of the forwarding authority might not be ministerial, either.
- But the decision of what form of service to use, especially in cases of service abroad, is most certainly a decision that requires legal judgment, at least in many cases. Suppose you say you want to serve via the foreign central authority. There are some logistical questions about how long the process will take, what fees must be paid, etc. But there are other more significant questions for the lawyer: Will the methods of service the foreign state is likely to employ satisfy due process requirements in the US? Does the case seek the kind of relief, e.g., punitive damages, or is it the kind of dispute, e.g., a tax dispute, that will lead certain foreign states to refuse to execute the request? And if you want to use an alternate method of service permitted by the Convention, similar questions arise. Until this year, you had to ask, is service by mail permissible in my circuit? Who is competent under US law or the foreign law to transmit or receive documents under Articles 10(b) or (c)? Certain states’ objections under Article 10 are not simple and unambiguous: how should they be read? What is the effect of the form of service I choose on the ultimate enforceability of the judgment in the relevant jurisdictions? And so on.
- Not only is the decision of what form of service to use a legal decision. The advice given to clients can take on a fiduciary character, because the client or his lawyer has turned to an expert—either a lawyer or a “vendor”—precisely because he doesn’t know how to do it himself, and because there is a potential for conflict of interest. Take yesterday’s case of the day, where it appears the client paid someone to submit a request for service to the Chinese central authority, and after doing the job and, I presume, being paid for it, the vendor told the client that the service would take a long time. Wouldn’t the better advice—for the client, not the vendor—have been to file the motion for leave to serve by alternate means in the first place?
Whenever lawyers talk about unauthorized practice of law, there’s an obvious concern that highminded talk about the best interest of the client is just window dressing on the bar’s desire to maintain a monopoly for its own financial benefit. And I should say that I do consult with other lawyers on difficult service of process issues, for a fee (need help? Call me!) But for the most part, my point isn’t that process servers should be replaced with specialized lawyers. It’s that lawyers should take responsibility for the legal issues involved in service of process in their own cases rather than outsourcing. If you need help in a difficult case, fine, there are folks out there who can help. But for the most part, there are enough resources out there to let lawyers figure this stuff out, as with any other legal issue they face. Of course, it would help if law schools would include the basic issues in the 1L civil procedure curriculum.