COMMENTARY: Couriers and process servers: Is it high time for oversight?

By Maggie Lourdes Many lawyers utilize private couriers and process servers to transport legal documents, file pleadings, and conduct process serving. Unfortunately, law firms are rife with stories of couriers and process servers gone awry. Recently, my firm had a courier service lose an original will it was hired to file for safe keeping with the probate court. I learned of the error, not through the courier's admission, but by the client informing the office that her filing fee check had not cleared. A completely different courier once carried a substantial settlement check with him in a backpack during a weekend vacation. Horror stories such as these, along with service effectuation being misrepresented and summonses unnecessarily expiring for lack of timely service, are far too common in legal circles. Few restrictions are placed on who may process serve or courier legal papers. Any legally competent adult who is not a party in a case may conduct process serving. (MCR 2.103). Of course, serving writs of restitution or orders to attach or seize property must be completed by a sworn court officer, sheriff, or deputy. However, beyond those limitations, essentially any adult may be a paid process server or courier legal papers. Relating to process service, the fundamental right of due process is involved. (MCR 2.105(J)(1)). Carrying legal documents, if not done with prudence, can lead to potential legal dilemmas, as illustrated by the earlier example of the lost will. Such documents often contain sensitive client information, which should demand the utmost care in handling. Considering this gravity, the question arises whether individuals entrusted with these duties should be vetted more carefully. Process servers appointed through Michigan courts are generally required to maintain a minimum surety bond of $10,000. Their fees are also regulated by state law. (MCL 600.2559(1)(d), MCR 2.103(A), MCR 3.106 (B)(1)(a)). Of course, court officers, deputies and sheriffs, who often conduct standard process service, are subject to bonds and background checks, as well. By further analogy, notary publics in Michigan are also required to carry a $10,000.00 surety bond and are subject to strict oversight. (MCL 55.273, MCL 55.269). Unlike their court appointed counterparts, no oversight or bonding requirements exist for private individuals who conduct legal courier services or process serving. Bonding and background checks for persons who transport legal documents or conduct process serving in the regular course of business would not be overly burdensome. The costs of notary bonds, for example, are nominal, with a typical one year surety ranging approximately $50. Furthermore, the low cost and ease of showing a clean criminal record is not onerous either. Such minor oversight would insure more reliability and protection for clients, law firms, and the general public, alike. For instance, if pleadings aren't timely filed due to a courier's error, if process service is not properly effectuated, or if an original document or settlement check is lost, the client will look to the lawyer for restitution. Bonding and background checks would create a certain amount of insulation from legal malpractice, by providing a collectible bond and the defense the courier was reputable, and not negligently retained. It further may upgrade the pool of persons engaged in these services, creating better quality and dependability. Couriers and process servers are more than just "runners." They perform critical functions, which can ultimately lead to catastrophic results if they fail to perform competently. Measured requirements to protect the public, such as those imposed on notaries and court personnel, is only reasonable. If modest bonds and positive background checks cannot be accomplished by those who wish to serve and transport legal documents, then maybe it is time to ask if those individuals should be privy to the responsibilities. ---------------- Maggie Lourdes is an attorney based in Plymouth. She can be reached at: Maggielourdes@aol.com. Published: Fri, May 13, 2011