It’s very common, and 100% correct, for US lawyers to transmit requests for service under the Hague Service Convention to foreign central authorities. But despite years of guidance from the HCCH on this topic, in the Practical Handbook and, if I recall, in the Conclusions & Recommendations of the Special Commission, central authorities often don’t understand that US lawyers are authorized to do this.

The Office of International Judicial Assistance at the US Department of Justice has now issued new guidance making it clear once again that US law authorizes US lawyers to act as “forwarding authorities” under Article 3 of the Convention. The guidance explains that US lawyers are “judicial officers,” and Article 3 authorizes “judicial officers,” as well as authorities, who are competent under the law of the forum state to forward requests for service.

The way the guidance makes the point about “judicial officers” seems a bit odd to me. The guidance cites cases that make it clear that US lawyers are “officers of the court,” and that their duties “relate almost exclusively to proceedings of a judicial nature.” And it notes cases showing that lawyers in the US have the power to summon witnesses to testify, etc. (under the FRCP, for example, lawyers can issue subpoenas, though notably, they cannot issue summonses). But it is odd to my ear to call a US lawyer a “judicial officer.”

The Convention requires the forwarding authority to be an authority or officer and to be authorized under the law of the forum. The guidance therefore also points out that the FRCP authorizes any adult other than a party to serve process. That’s true, though frankly the only times I ever see it in my own practice is when I serve process by post in domestic cases (Massachusetts allows for service on out-of-state defendants by mail, and the FRCP 4(e) incorporates state law) or when I serve process abroad under the Convention and make the request for service myself.

Interestingly, the French version of the Convention has officier ministériel for judicial officer. I took a look at the report of M. Vasco Taborda Ferreira, which is included in the Acts and Documents of the Tenth Session of the HCCH, which says something very interesting:

Il faut remarquer que la Commission a entendu inclure dans ces expressions toutes les personnes qui peuvent faire des notifications selon la loi de l’Etat requérant, même si ces personnes ne sont pas des officiers ministériels (par exemple les solicitors dans la Common Law).

After 710 days of Duolingo French, I think this makes it clear that the drafters meant to include solicitors even though they are not officiers ministériels, or in the English text, “judicial officers.” That raises interesting questions, because it suggests that the Convention does not mean what it seems to say (if a solicitor is neither an authority nor an officier ministériel, why should he or she be able to act as the forwarding authority at all?) or that there was some intentional fudging in the preparation of the two authentic texts (solicitors may be judicial officers even if they are not officiers ministériels) in order to smooth the way for solicitors, and thus US lawyers, to forward requests. The problem with the report’s broad reading of Article 3 is that it would seem to support the view that anyone who is competent to serve process under the FRCP, that is, any adult not a party, can act as forwarding authority, and I am not sure that other contracting states would be okay with that, even if it raises no problems from the US perspective.

On the other hand, the Explanatory Report seems to say the opposite:

Il est bien entendu que le solicitor anglais est inclus dans l’expression autorité ou officier ministériel compétents. Il pourra donc s’adresser à l’Autorité centrale de l’Etat requis.

So I throw up my hands.

I am glad the DOJ has taken this step to make life easier for US litigants!