Daily Blast November 24, 2015

The WSBA Committee on Professional Ethics (“Committee”) recently issued an ethics opinion addressing a common scenario for civil litigators: the use of an independent process server to personally serve a represented opponent.

In civil litigation, certain proceedings must be commenced by personal service. For example, a defendant must be personally served with a summons and the complaint to commence an action.  RCW 4.28.080(15); CR 4(d).  Lawyers frequently employ independent process servers to accomplish the personal service required under rules.  Where the person to be served is not represented, such service generally poses few problems under the RPC so long as the process server’s communications with the unrepresented person are not false or misleading.  See RPC 4.1(a), RPC 4.3, Rule of Professional Conduct (“RPC”) 8.4(a),(c).  But the personal service requirement can cause tension with the lawyer’s ethical duties when the party to be served is known to be represented in the matter.  RPC 4.2, often referred to as the “no contact rule,” generally prohibits a lawyer from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter[.]”  RPC 8.4(a), in turn, prohibits a lawyer from violating the RPCs “through the acts of another[.]”  The new ethics opinion, 201502, examines two facets of the “no contact” rule involving process servers.

First, the Committee observes that RPC 4.2 includes an exception for contacts that are “authorized by law.”  For example, CR 4(d) generally requires personal service of a summons and initial complaint on the opposing party.  Likewise, CR 45(b) generally requires personal service of a subpoena on a non-party.  Further, in many instances, lawyers representing an opposing party or a non-party witness may not be authorized to accept service on behalf of their clients.  The Committee concludes that the “authorized by law” exception applies when process is required by a statute or rule to be served personally.

Second, the Committee examines the more nuanced question of whether a process server may communicate with a represented person to facilitate service.  It concludes that simply contacting a represented person to arrange a convenient time and place for service does not violate RPC 4.2 because the “authorized by law” exception, fairly read, includes “communications required to accomplish personal service.”  The Committee cautions, however, that “any comments or questions regarding substantive issues in the matter are clearly beyond the scope of the exception and therefore improper under RPC 4.2.”

While the exceptions to RPC 4.2 permit a lawyer to communicate directly with a represented party to accomplish personal service, the Committee strongly recommends that the lawyer refrain from such communication due to the increased risk of violating, or being perceived to violate, RPC 4.2 or another rule.  The risk of straying beyond the limited scope of the exception, and thereby engaging in prohibited communication, is exacerbated when the lawyer communicates directly with a represented party.  The risk that the represented person to be served, or that person’s lawyer, will misinterpret communication that is intended to be merely procedural is similarly exacerbated when the person to be served is a party to the action.  According to the Committee, the safer course of action is to ensure that the lawyer neither communicates directly to the party nor receives communication directly from the party, by engaging the services of an independent process server.

In the usual course of such an engagement, a lawyer often simply instructs the process server to accomplish service, leaving the details to the process server. However, a lawyer who directs a process server to communicate directly with a represented opposing party must take care that the directions do not go beyond the scope of the exception or risk violation of RPC 4.2 and 8.4(a).

Opinion 201502 is available through the ethics opinion search engine on the WSBA website.

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