The mind just reels.  I’m in England at the moment, and an England issue has come up that I cannot bear yet again without a rant.  Forgive me…

Lawyers, stop taking legal advice from non-lawyer process servers.  Just stop it.  That goes double for non-lawyer process servers in other countries.

Seriously– it’s like an MD taking diagnostic direction from a CNA.  Sure, the aide is a vital part of the medical team,* and they do some amazing work.  But if things go badly, the malpractice suit isn’t coming at the aide.  Yes, the physician has to rely on the aide’s input, and the aide may be incredibly talented at carrying out a treatment plan, but the responsibility of decision lies with the person with all those fancy diplomas on the wall.

Twice in as many weeks, I’ve had U.S. lawyers call me to ask how much it costs to have a defendant served in (England, India), and I unabashedly tell them what I charge.

Oh, that’s too much.  I’ll just go directly to a process server.  I emailed a guy in (London, Bangalore)– he tells me it’s no sweat– he can fix me up for about what my local guy charges me.

So this is me, for a moment…

Ahem, no.  It doesn’t work that way.  In either country.  The Hague Service Convention governs both scenarios, and both countries’ declarations are pretty straightforward on how to effect service.

Options in ENGLAND:
  1. Article 5 request to the Central Authority.
  2. Mail, under Article 10(a)… almost always a bad idea.
  3. Private Process Server, Article 10(c).

But the UK position on Article 10 carries a caveat: using a process server is only valid if that process server is instructed by a solicitor.  If the process server tells you not to worry about it, give your malpractice carrier a heads-up because you’re taking advice on U.S. law** from a foreign non-lawyer.

Options in INDIA:
  1. Article 5 request to the Central Authority.  END OF LIST.
  2. THERE IS NO OPTION TWO IN INDIA, despite what India-based process servers may tell you.

The truth is, India is one of the few common law jurisdictions that doesn’t have them except in rare circumstances.  If the process server tells you not to worry about it, give your malpractice carrier a heads-up because you’re taking advice on U.S. law** from a foreign non-lawyer.  A guy in Bangalore saying he’s a process server is a bit like an Über driver  in New York saying he can fly you around in his drone.  Yeah, it’s theoretically possible, but… jeez.  Come on.

So why would one of those folks overseas make claims like these?

  • Oh, yes, we can serve those documents in Gujarat for you.  Nooooo problem.
  • No, you don’t have to worry about the Hague Service Convention.  Nobody here takes it too seriously.
  • We’re a common law country, just like you.  We do things the same way you do.
  • Of course I can take instruction directly from you, mate.  You’re a lawyer, right?

Why do you think they make such claims?  Because they have a commercial interest in convincing you to hire them instead of a U.S. lawyer who handles this sort of thing all the time.

But here’s the huge difference: a U.S. lawyer who handles this sort of thing all the time is actually cognizant of (and concerned about) compliance with U.S. law as it relates to the treaty.  We actually understand that Sandra Day O’Connor’s thoughts on the matter are a bit more valid than those of the fellow in London or Bangalore.

The takeaway from this rant?

  • In England (and Wales), make sure your process server understands that his/her affidavit must (1) demonstrate that Hague doctrine has been observed, and (2) reflect that s/he is instructed by a solicitor.
  • In India, don’t even bother.  You’ve got to make an Article 5 request to Delhi.

Oh, and if you try pulling this stunt in China… you and the guy you hire are subject to arrest and imprisonment.

I hear the food’s not very good in Chinese prisons, so good luck.

 


* I use this analogy carefully– my grandmother was a nurse’s aide, and she was the most competent caregiver I’ve ever known.  This post is not about whether process servers know their stuff.  They do– and I have several that I rely on regularly.  But legal analysis isn’t their stuff.

** The Hague Service Convention– including a foreign countries’ declarations to it– constitutes supreme U.S. law, which particularly overrides conflicting lower law.  That pesky old Supremacy Clause strikes again!

  • Victoria R

    Ok, my eyes are wide open. If an attorney in Australia asks me, the process server in the US, to serve a divorce paper, are not I under his/ her instruction? Also, how would it be different by going through your company? Would you act as local counsel for the entire us or contract with a Michigan attorney for a michigan process server, etc.

    • That’s a bit different analysis– the US declaration makes no indication of who is competent to serve here, but it’s really wide open thanks to federal rules. A US process server could serve a foreign action without much fanfare.

      But the Australian declaration to Article 3(1) omits attorneys from the list of forwarding authorities. They *may* not be able to make the requests without court involvement. Ultimately, a question of Australian law, which I’m not qualified to analyze.

  • Victoria R

    So if someone contacts me to find a process server in Europe, it is best to contact you first, correct?

    • Feel free any time.

      Note, however, that there’s no such thing as a process server– at least, not in the sense that we know them– in civil law countries (that is, any country that isn’t a common law jurisdiction, eg: England, Canada, Ireland). Moreover, there’s a significant split among civil law countries as to whether a US request can only be submitted to the foreign country’s Central Authority, or if it can be directly addressed to a judicial officer.