Archive for July, 2007
Self Service
July 28th, 2007 | 
Author: Landlords may, and often do, serve pre-litigation notices, such as notices to pay rent or vacate, themselves.
Occasionally landlords want to know if they can serve the summons and complaint themselves. A few landlords are rather emphatic that they have done this way before and want to pay an attorney to “just get the writ”.
Many issues of law are unsettled gray areas and the results vary depending on who is deciding the case and how they interpret the law on a given issue. This is not one of those issues.
This is not a rule limited to evictions. It is a long standing legal principal that the plaintiff in litigation may not serve the initial pleadings. This well-settled rule is embodied in Washington in the Civil Rules. CR 4(c) reads in part as follows:
By Whom Served. Service of summons and process, except when service is by publication, shall be by the sheriff of the county wherein the service is made, or by his deputy, or by any person over 18 years of age who is competent to be a witness in the action, other than a party.
The Washington Court of Appeals has addressed the issue. “[O]ur State has long required service of process to be made by a person other than a plaintiff. This requirement is consistent with the general principle of law that a person may not execute process in his own favor.” Crouch v. Friedman, 51 Wn. App. 731, 754 P.2d 1299 (1988).
An attorney who brings such an action knowing the landlord served process is, in my opinion, clearly violating rules of ethics in a rather serious fashion.
Rule 3.3 of the Rules of Professional Conduct requires the lawyer to practice candor to the court. If tainted information is protected by attorney-client privilege the lawyer “shall promptly make reasonable efforts to convince the client to consent to disclosure”.
The duties of candor under this rule are heightened in ex parte proceedings, i.e. when the other side is not present, such as when moving for default without notice.
“In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”
The Washington Supreme Court has suspended and disbarred attorneys for violation of this rule.
“While we consider all alleged violations of the RPCs with great seriousness, we view misrepresentations to the court in ex parte proceedings with particular disfavor. The duty of candor in an ex parte proceeding directly influences the administration of justice. We cannot, and will not, tolerate any deviation from the strictest adherence to this duty. “
Also, Civil Rule 11 states that by presenting anything to a court the attorney is certifying that the attorney performed a reasonably diligent inquiry and that the assertions are to the best of the attorney’s knowledge well-grounded in fact and law.
In summary, because a plaintiff serving process themselves is too self serving, it has long and universally been deemed legally invalid. And an attorney who knows or under the circumstances should know the landlord is violating this rule and presents the case in court may, in the long run, not be serving themselves very well, either.
Scott Eller
Washington Landlord-Tenant Attorney
TM
Posted in 
Bad Form – Failure to Serve a Summons with Mandatoy Language Proves Costly for Landlord
On June 8, 2006 I wrote in an article posted on this site about the new summons for residential unlawful detainer actions in Washington. In that article I wrote:
Amendments to the Washington Residential Landlord-Tenant Act went into effect yesterday….It is unclear what…courts will do when inevitably many landlord plaintiffs – acting pro se or with attorneys not familiar with the new law – come into court having served the old eviction summons.
A decision published last month by Division I of the Washington Court of Appeals held that a landlord had wrongfully evicted a tenant because the landlord’s attorney had caused the tenant to be served with an older version of the eviction summons.
Under the applicable statute as amendmended in mid 2005, the summons must contain certain mandatory language that informs the tenant that the tenant may respond by fax. The summons the landlord’s attorney served contained a fax number, but not the mandatory language stating that the tenant may respond by fax.
The Court of Appeals held that failure to include the language mandated by statute was fatal to the trial court’s jurisdiction and ordered the case dismissed, about a year and a half after the eviction lawsuit was originally filed.
The court made a distinction between “form and content” requirements, for which substantial compliance is sufficient, and “time and manner” requirements, for the landlord is held to a strict compliance standard.
In the context of a residential unlawful detainer action, the summons must comply with RCW 59.18.365 to confer both personal and subject matter jurisdiction. Because the unlawful detainer action is in derogation of the common law, courts must strictly construe it in favor of the tenant.
The lesson here is the law changes and a landlord should be very careful using form kits or attorneys who do not specialize in landlord-tenant law, either of which may not be up to date on landlord-tenant law.
Scott Eller
Washington Landlord-Tenant Attorney
Seattle Landlord Attorney Scott Eller Interviewed by Northwest Investor
Recently I has the oportunity to be interviewed by Northwest Investor.org regarding eviction laws in Washington had how they affect real property investors. The interview may by heard at both my site www.accessevictions.com and at northwestinvestor.org.
