Can an Attorney Serve Process?

Below, we’ll explain what the letter and spirit of the law are with respect to attorneys serving process. Then, we’ll break down which parties can do it and how, the pros and cons of using certain process servers, and why law firms increasingly rely on process serving technology.

What is Service of Process, and Can Attorneys Do It?

Understanding who can serve papers legally starts with appreciating what the serving process means. 

Service of process in a legal setting is when one party to a legal proceeding notifies another party about it, giving them adequate time to prepare and mount a defense.

The specific papers served by process servers include, but are not limited to:

• Summonses that inform defendants of an impending lawsuit
• Complaints that detail grievances and request compensation
• Subpoenas that educate witnesses on a mandatory appearance
• Writs that formally order parties to cease an activity immediately
• Orders to show cause that request justification for a pending motion
• Family law documents related to special cases, like divorce proceedings

In many situations, attorneys might be legally allowed to serve these documents to their recipients. However, it may make more logistical sense to have a professional do it instead.

What the Law Says About Serving Legal Documents

With respect to procedural due process, who serves papers is less important than ensuring that the person being served actually receives proper notice. The most important overarching rules about process serving come from Mullane v. Central Hanover Bank & Trust Co. from 1950. The notice “must be reasonably calculated… to inform interested parties of a pending action and give them an opportunity to respond.”¹

Mullane reinforces the Constitution’s procedural due process rules found in the Fourteenth Amendment, applicable to all U.S. jurisdictions.² Granular rules about who can serve process and in what ways differ on a state-by-state level. In some cases, a license may be required. In others, all individuals who are over 18 years old and not party to a legal action can serve process. But whether an attorney should be the one serving process is another question.

Ethical and Professional Considerations in Service of Process

Serving papers is critical to upholding due process rights and ensuring a fair trial. While attorneys can do this, hiring a trained (and sometimes licensed) professional is one of the best ways to ensure that ethical, professional, and other standards are being met and to mitigate process serving delays.

To that effect, there are three main considerations for maintaining ethics in process serving:

• Truthfulness and transparency – Notice must be accurate and up to date, and all process servers must be honest about their identity and reason for visit or contact.

• Privacy and confidentiality – Papers should be served as discreetly as possible so as to avoid drawing undue attention and tainting others’ perceptions of the recipient.

• Avoiding conflicts of interest – Process servers cannot have personal or business relationships with targets and should avoid any outward appearance of impropriety.

These are reasons professional process servers, rather than attorneys, usually serve papers.

Who Is Legally Permitted to Serve Process?

As noted above, procedural due process laws are far more concerned with ensuring receipt of process papers than restricting who can serve them and in what ways. In this spirit, most jurisdictions allow most parties over the age of 18 to serve process as long as there is no conflict of interest present. However, some courts and cases will need registered process servers.

In most cases, service of process happens through a professional process server. Firms hire individuals or agencies to serve papers to their targets rather than tasking attorneys with it. A court officer or the sheriff can also serve process, but many firms find that these alternatives take longer and are generally less reliable with respect to efficiency and communication.

Another major consideration is whether applicable state or local laws restrict who can serve process. In some contexts, a lengthy, expensive license or registration may be required.

State-by-State Variations in Service Laws

Although the spirit of the law aims for relatively uniform service of process across the U.S., the on-the-ground experience is different depending on the state you’re in. Due to local laws, hiring a process server in California is different than in New Jersey, Colorado, or Georgia.

The following states mandate licensure (or something similar) for process servers³:

• Alaska – Licensure from the Commissioner of Public Safety and a $15,000 bond

• Arizona – Registration subject to age restrictions (21+) and 1+ year of residency

• California – Registration and a $2,000 bond for parties serving 10+ papers annually

• Illinois – Licensure as “private detective agency” or direct appointment by a court

• Montana – Registration and a $10,000 bond for parties serving 10+ papers annually

• Nevada – Licensure with an age restriction (21+), minimum experience requirement (2+ years), background check, and liability insurance (minimum coverage $200,000)

• Oklahoma – Licensure via fee for county ($35) or state ($150) and a $5,000 bond

• Texas – Registration with educational screening and a criminal background check

• Washington – Registration via home or professional residence is subject to a $10 fee

In addition, some states have special laws for specific jurisdictions within them. For example, several counties in Florida appoint special process servers subject to vetting, and New York City in particular (but not the state) requires licensure through a local governmental office.³

Pros and Cons of Attorneys Serving Process

Attorneys may choose to serve process themselves if a particular case calls for exceptional situational flexibility. Taking on the responsibility rather than delegating it could reduce costs, and it can mitigate the risks of a particularly tricky or sensitive situation. Additionally, depending on when a given paper needs to be served, doing it yourself might ensure timely delivery.

However, attorneys may also subject themselves, their firms, or their clients to ethical and legal risks if there is a conflict of interest present—or even if there is the appearance thereof.

Additionally, attorneys serving process may appear at first to be a time-saving measure, but it could easily turn into a costly operation if the target winds up hard to find. Attorneys can also tarnish their own reputation or that of the firm if targets react poorly to being served.

The Administrative Burden on Legal Teams

Service of process should be a relatively straightforward endeavor. However, in practice, it’s often much more complicated than it seems. From a baseline administrative standpoint, steps need to be taken to ensure that the notice itself is adequate per Mullane standards and other applicable precedents in a given jurisdiction. This includes both the content of the notification and the way it’s delivered—you need to make sure the recipient receives and understands it.

In addition, it can sometimes be challenging to actually get the papers to their recipient. A target might be hard to reach because of their location, or they could be intentionally trying to elude service of process.⁴ Serving them requires savvy and tact, which are costly at scale.

Why Firms Rely on Professional Process Servers

Ultimately, the reasons firms use professional process servers have less to do with legality than convenience. Even if an attorney is able to serve process, legally, it would often be much more efficient and effective for the firm to delegate that task to a professional.

The primary factors driving law firms to serve process via external professionals are:

• Speed – Professional process servers are dedicated to serving papers and can deliver much more swiftly and efficiently than attorneys with other responsibilities.

• Accuracy – Professional servers’ expertise and focus extend to quality assurance, and agencies and third parties who work with them can vet all papers prior to service.

• Legal validity – Professional servers reduce firms’ exposure to liability and ensure ongoing compliance by removing possible conflicts of interest from the process.

On the last point, state and local requirements for service of process often include obtaining an affidavit of service or other formal documentation. While attorneys may be capable of doing this, professionals or agencies already have a communication infrastructure in place.

Should You Serve Process or Delegate It?

When faced with decisions regarding who should serve process and how, most law firms trust professionals dedicated to the task,while there are many situations in which attorneys can legally serve process, most legal teams benefit more from third parties doing it instead.

U.S. Legal Support offers process serving in all 50 states in the U.S., including major cities with unique laws and restrictions like New York City, Dallas, San Francisco, and more. Our team of experts is versed in both applicable laws and the realities of process serving, and we’ll help you navigate situations with repeated attempts, rush service, and e-filing.

To learn more about U.S. Legal Support’s process serving offerings, get in touch today!

Sources: 

1. Justia. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). https://supreme.justia.com/cases/federal/us/339/306/
2. Justia. Procedural Due Process Civil.  https://law.justia.com/constitution/us/amendment-14/05-procedural-due-process-civil.html#fn-754
3. National Association of Professional Process Servers. State Laws Licensing Process Servers. https://napps.org/Laws_state_licensing.aspx
4. Pursuit Magazine. Catch Me If You Can: Service of Process on Evasive People. https://pursuitmag.com/catch-me-if-you-can-service-of-process-on-difficult-people/

Julie Feller

Julie Feller is the Vice President of Marketing at U.S. Legal Support where she leads innovative marketing initiatives. With a proven track record in the legal industry, Juie previously served at Abacus Data Systems (now Caret Legal) where she played a pivotal role in providing cutting-edge technology platforms and services to legal professionals nationwide.