I am generally a very courteous lawyer, and I like to extend courtesies whenever I can. The practice of law is difficult enough at baseline, and lawyers can make it easier to practice if they extend small favors to each other and treat adversaries and other stakeholders in a legal matter with some kindness. However, sometimes lawyers ask me to waive substantive rights that my clients might have, under the guise of granting adversaries a courtesy. I generally do not believe a lawyer has a duty to extend a courtesy that waives a client’s substantive right, and this usually extends to not automatically accepting service of process or waiving defenses parties might have involving service of process.
In some instances, rather than make an adversary go through the process of serving my clients, I will accept it. For instance, if an adversary gives me an extension of time to answer, I generally repay the favor by waiving service of the summons and other initiating papers. In addition, some clients want their lawyers to waive service of process since they do not want to be chased down by process servers. However, if a client does not care about being served, and lawyers are not getting anything in return, it seems fine to refuse waiving service of process.
Several times in my career, I have defended clients who were not properly served with process. Sometimes, my clients encourage me to fight service of process since they want to advance any defense they have to a given legal claim. Usually, I will not file a motion to dismiss solely on the basis of ineffective service of process, but if I am filing a motion to dismiss anyways, I might throw in the lack of service of process as an additional defense. In some instances, service of process is waived if it is not contested early in litigation, so it typically pays to preserve the argument, especially if a motion to dismiss is filed for other reasons.
Multiple times in my career, adversaries have reached out and asked that I waive service of process, even though they concede service of process was wrongly performed and I filed a motion to dismiss on this basis. Adversaries have suggested that it is a common courtesy to waive service of process, and that I was not being kind with contesting service of process. I usually respond by saying that it was not typical to unilaterally waive service of process without getting any benefit in return, and that if the adversary did not want to make service of process an issue in this case, the lawyer could have followed the service of process rules correctly.
I am not the type of lawyer who really cares if another lawyer waives service of process. If the other lawyer wants to waive service, I prepare an acknowledgement of service document, and if they do not, I reach out to a vendor in order to properly effectuate service of process. Guilting someone to accept service of process is not a tactic that I employ, but this has happened to me on multiple occasions. I generally want to be seen as a courteous lawyer, but at the same time, I have a duty to diligently represent my client, and waiving service of process can forgo a critical defense.
I’d love to hear responses from practitioners about whether waiving service of process is a courtesy that should be done unilaterally and when no benefit is conferred on the lawyer waiving service. My feeling is that lawyers should not be asked to waive a substantive right, and this is different from when a lawyer asks for an adjournment due to unforeseen circumstances or other similar situations. Although lawyers can sometimes waive service of process for practical reasons, if a client wants to fight service of process, lawyers should not be pressured to waive this argument in order to promote courtesy.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].