July 28th 2007 02:52 pm
Self Service
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
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