What's the difference between a process server and a messenger? There are those who would say there is no difference, since they both do essentially the same thing-deliver papers. But such an answer, of course, reveals a serious lack of knowledge about the true role and responsibilities of a process server.
A process server is defined by his or her integrity in preparing the most critical piece of evidence in any civil court case-a valid proof of service-which is the key that opens the door for litigants and their lawyers to enter the courtroom and have their cases heard by a court of competent jurisdiction.
All but a few states require that the return of service by a person other than the sheriff be made by affidavit (i.e. a statement under oath before a notary public). Arizona, California, Oregon and Florida are among those states that do not require affidavits; they permit a proof by unsworn declaration under penalty of perjury.
I'm sad to report that I have received credible reports that some process servers (and process service companies) are playing fast and loose with the truth in the preparation and signing of both these types of returns. It's important, however, that the impression not be given that the whole process serving industry is awash in fraudulent activity in preparing its proofs of service. That is clearly not the case and not the intent of my comments. But even a few fraudulent proofs are a few too many.
Most of the reports/complaints I've received fall into the following four broad categories, which do a fairly good job of identifying the problem.
Process service companies which take the information provided by their process servers and put it on unsworn proofs (sometimes accurately and sometimes not) and then sign the process servers' names, usually with the express or implied consent of the individual process servers.
Companies which prepare unsworn proofs with altered data in order to comply with certain statutory rules (i.e. increasing the number of dates and times of attempts to establish "reasonable diligence" before effecting a substituted service) and then signing the process server's name.
Companies which request that out of area and out of state process servers sign the provided proof in blank and return to the sender for completion. [Some years ago, a member in Oklahoma would not renew his membership because he was constantly being badgered with requests to sign the senders' proof in blank, which he refused to do.]
A notary public who allows another person, not a notary, to use their notary seal and sign the notary's name to an affidavit of service.
I'm frankly very disheartened (and surprised) that many of the people who are involved in the above practices do not seem to know that what hey are doing is both unethical and illegal.
It was only recently that I first heard of anyone claiming that it was "Industry Practice" for a person to sign another person's name to a proof of service. In fact, I was called recently by an individual in a firm who discovered by accident that the proof in one of their cases was signed (in the name of the process server) by someone other than the person who served it. She had been told that it was "Industry Practice" in California to sign another person's name to a proof of service, and she wanted me to confirm this-in writing. Needless to say, that didn't happen.
A variety of voices have weighed in on this issue within the past several months. Andy Estin, the founding president of NAPPS, expresses the widespread view of our members when he denounced such conduct as being "illegal and unethical and not acceptable under any circumstances." He says that those engaging in such conduct "should be exposed and forced out of the business."
A recent front-page article by Justin Allen in CAPPS-ules & Comments, the official newsletter of the California Association of Photocopiers and Process Servers, reported that the CAPPS Board had taken the position that the process server who served the process must sign the proof of service.
What is clear from all this is that some of our members need to be educated in the proper preparation of proofs of service. I suspect we'll get to this right away. After all, the preparation of a proper, valid proof of service is what we do, and how we do it defines us as process servers.
