05Nov
By: Tom On: November 5, 2019 In: International Litigation, International Service of Process Comments: 0
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In the past, we’ve stressed the importance of selecting a professional vendor when seeking assistance with serving process and taking evidence abroad. Here again we take up pen and paper (figuratively speaking) to stress the importance of selecting a quality vendor.

Unlike Legal Language Services, many other vendors who assist with international service of process do not have licensed attorneys on staff. Doing so, keeps the vendor’s overhead low and profits high. This may be in the vendor’s best interests, but it is not in the best interests of the client.

Case in point: LLS was asked by a defense attorney to review the service of a class-action lawsuit upon a defendant in Greece from a US plaintiff. We were asked two specific questions:

  1. Was a paralegal’s execution of the Hague forms (USM-94) proper?
  2. Was service upon the defendant’s attorney proper?

Who has the Authority to Execute Hague Forms?

In the parlance of the Hague Convention, the person competent to execute the Hague forms is referred to as the “forwarding authority.” A forwarding authority is any “authority or judicial officer competent under the law of the State in which the documents originate.” Only they can “forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.”[1]

In its reservations and declarations to the Convention, the United States has identified “any court official, any attorney, or any other person or entity authorized by the rules of the court” as forwarding authorities.[2] Elsewhere in its reservations, the US observes that “attorneys in the United States are authorized to perform legal functions in the State to which they are admitted to the bar.”[3]

Read together, this guidance suggests that in the US forwarding authorities include:

  • Clerks of the court
  • Judges
  • Licensed attorneys

Because paralegals are not forwarding authorities,[4] it is likely that a US court will quash the service upon the Greek defendant.

It is true that some courts follow a minor error rule concerning compliance with Hague procedure: “the failure to comply strictly with the Hague Convention is not automatically fatal to effective service.”[5] The plaintiff could potentially argue that a paralegal’s execution of the Hague forms falls under this minor error rule, and hence that the service should not be quashed. Nevertheless, because the vendor in this case does not have an attorney on staff and so routinely has paralegals executing Hague forms, they are operating in flagrant disregard for the law, consistently placing their clients at risk of quashed service.

When is Service Proper?

Under the Convention, service is proper if it conforms with the lex fori.[6] Accordingly, whether the Greek defendant in this case was properly served depends on Greek agency law and what is (or is not) in the attorney-defendant engagement letter.

The creation of an agency relationship in the US requires a manifestation of assent.[7] In the US –and likely in Greece too – engagement letters often do not explicitly state that an attorney is authorized to accept service of process on behalf of the principle. Accordingly, in the case at hand, the defendant is likely to have yet another argument in favor of having service quashed.

The Bottom Line

Perhaps the plaintiff in this case will prevail and service will not be quashed. Yet, even if the plaintiff does prevail, they will have to bear the burden of additional legal fees to cover the cost of defending the motion to quash.

These fees (and the time to hold a hearing) could have been avoided if the plaintiff would have only hired an experienced, qualified vendor like Legal Language with attorneys on staff.

If you require assistance serving process or taking evidence abroad, trust the professionals. Contact Legal Language today.

Call us today at 1-800-788-0450 or simply fill out our free quote form.

Notes

[1] Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matter; At Article 3(1).
[2] United States of America – Central Authority & practical information; https://www.hcch.net/en/states/authorities/details3/?aid=279 at Article 3(1) (sic).
[3] Id. at Article 10(b).
[4] In Imbler v. Pachtman, 424 US 409 (1976), SCOTUS distinguished between when attorneys were acting as officers of the court and when attorneys were performing mere administrative functions. When attorneys represent clients they are officers of the court; when attorneys conduct investigations they are performing administrative functions and are not officers of the court. Accordingly, as a paralegal cannot represent clients, there is a good argument that they cannot be officers of the court.
[5] Burda Media, Inc. v. Viertel, 417 F. 3d 292, 301 (2nd Circuit 2005) citing see Greene v. Le Dorze, 1998 WL 158632, at *2 (N.D.Tex. Mar.24, 1998)(emphasis in the original).
[6] See Article 2 and 10.
[7] Restatement of the Law, Third, Agency § 1.01 (2006).


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