Josh Kaplan of DCist published a major exposé on fraudulent service of process in Washington DC, leading to many tenants being evicted without ever having been served with process. The problem arises when private process servers, who are paid by the job, submit false affidavits. Kaplan was able to show that affidavits were false by showing that the servers had claimed to be in two places at once, or had claimed to travel impossibly quickly. The story is very well done—you should read it. I think the malefactors should be charged with a crime, and lawyers who were in a position to see that the servers were lying should be subject to discipline.
What lessons can we, as lawyers concerned with service of process, draw from this scandal?
First, I think we need to consider licensing of process servers. In some states, including Massachusetts, as a general rule only a sheriff or constable can serve process without leave of the court. In federal court, anyone can serve process, but because of the nature of federal jurisdiction, I would not expect to see the kind of fraud in federal court we see in Washington and presumably in other state courts. States should consider amending their versions of Rule 4 so that only an official or at least a licensed person can serve process. Of course, there will never be American huissiers.
Second, process servers should have to furnish a bond with sureties. This requirement would provide compensation for people like the tenants who were wrongfully evicted, and the companies that would issue such surety bonds could police the servers much more effectively than the government, in the same way that liabilities insurers can.
Third, and most fundamentally, this scandal is an example of the dangers that arise whenever someone practices law on an industrial scale. Problems like this are, I think, most likely to crop up in areas such as landlord/tenant law, debt collection, or other high-volume areas of practice. I will simply say the ethical risks inherent in a high-volume practice seem difficult to manage. I am sure there are lawyers who can manage it with great success. But as the DCist article shows, peoples’ fundamental rights are at stake, and lawyers must always strive to meet the highest standards of the profession in order to make sure that no one is deprived of their property (yes, a tenant has a property interest in a leasehold. If you rent an apartment, then in a very real sense, it’s your property!) without due process of law.