Can a North Carolina lawyer explain the legal effect of service of process to a client, and may the lawyer advise the client on how to evade service?

Plain-English summary

A husband, knowing his wife had retained a lawyer for a domestic action, consulted Attorney X and asked about the effect of service of process, including whether the wife's case could go forward if the sheriff could not find him because he "disappears for awhile." The opinion addressed what the lawyer may and may not tell the client about service.

The opinion concluded the lawyer may explain the legal effect of service of process, because a lawyer must "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation" (Rule 1.4(b)). The lawyer may tell the client he has no legal obligation to volunteer to accept the complaint or to pick up papers from the sheriff, and may discuss the consequences of evading service if the client asks, consistent with Rule 1.2(d), which permits discussing the legal consequences of a proposed course of conduct while barring advising or assisting fraudulent conduct.

The opinion concluded, however, that the lawyer may not explain ways to evade service, such as instructing the client to have a receptionist lie to deputies, to leave by the back door, or to stay away from home. Such counseling is unethical for several reasons: service of process is a necessary component of the judicial system and a lawyer is an officer of that system, so counseling evasion interferes with the system and is prejudicial to the administration of justice (Rule 8.4(d)); a lawyer should not counsel or assist conduct the lawyer knows is fraudulent (Rule 1.2(d)); and advising evasive action solely for delay is disrespectful of the opposing party's rights, violating Rule 4.4's bar on means that have no substantial purpose other than to delay a third person. The opinion further concluded the lawyer may not advise the client to evade service even without telling him how, and that the prohibition applies to service of other court documents such as subpoenas.

Currency note

This opinion was issued in 1998, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rules under the numbering then in effect (Rule 1.4(b); Rule 1.2(d); Rule 8.4(d); Rule 4.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a North Carolina lawyer explain how service of process works to a client?

A: Yes. The opinion concluded the lawyer may explain the effect of service under Rule 1.4(b), including that the client has no duty to volunteer to accept the complaint or pick up papers from the sheriff.

Q: Can the lawyer advise the client on how to evade service?

A: No. The opinion concluded advising evasion (for example, having staff lie, leaving by the back door, or staying away from home) violates Rule 8.4(d), Rule 1.2(d), and Rule 4.4.

Q: What if the lawyer just tells the client to evade service without explaining how?

A: No. The opinion concluded the lawyer still may not advise the client to evade service, even without instructions on the method.

Q: Does the prohibition extend to subpoenas and other court documents?

A: Yes. The opinion concluded the bar on instructing a client to evade service applies to service of other court documents such as subpoenas.

Background and rules framework

The opinion applied North Carolina Rule 1.4 (communication; explaining matters to permit informed decisions), Rule 1.2(d) (counseling or assisting crime or fraud), Rule 8.4(d) (conduct prejudicial to the administration of justice), and Rule 4.4 (respect for the rights of third persons; means with no substantial purpose but to delay), the analogues to Model Rules 1.4, 1.2, 8.4, and 4.4, to a lawyer's advice about service of process.

Citations and references

Rules of Professional Conduct:

• MR 1.4 (communication) / NC Rule 1.4(b)
• MR 1.2 (scope; counseling crime or fraud) / NC Rule 1.2(d)
• MR 8.4 (misconduct) / NC Rule 8.4(d)
• MR 4.4 (respect for rights of third persons) / NC Rule 4.4

See also

• NC State Bar Op. 2005 FEO 3: Immigration Prosecution to Gain an Advantage in a Civil Matter
• NC State Bar Op. 2008 FEO 15: Civil Settlement That Includes Agreement Not to Report to Law Enforcement

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/98-formal-ethics-opinion-2/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Husband is aware that Wife has retained a lawyer and intends to proceed with a domestic action. Husband retains Attorney X to represent him. At his initial conference with Attorney X, Husband tells Attorney X that he believes that Wife has filed an action against him. Attorney X asks if Husband has been served with a complaint. Husband tells him that he has not received a complaint and asks Attorney X to explain the effect of service of the complaint. Attorney X explains the different forms of service, speculates that Wife will attempt service through the sheriff's department, and informs Husband that he must be properly served with the complaint in order for Wife to prosecute her case. Husband asks whether Wife's case can go forward if the sheriff's department is unable to find him because he "disappears for awhile." Attorney X tells him that the case cannot proceed unless he is served.

Is it ethical for Attorney X to explain to Husband the legal effect of service of process?

Opinion #1:

Yes, a lawyer "shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rule 1.4(b) of the Revised Rules of Professional Conduct. For example, Attorney X may explain to Husband that he has no legal obligation to volunteer to accept the complaint or to pick up the papers from the sheriff's department should the sheriff's office call to request his cooperation. Moreover, if Husband asks about evading service, Attorney X may discuss the consequences of this proposed course of conduct. See, e.g., Rule 1.2(d) which permits a lawyer to discuss the legal consequences of any proposed course of conduct while prohibiting the lawyer from advising or assisting a client to engage in fraudulent conduct.

Inquiry #2:

May Attorney X explain ways to evade service of process to Husband? Such advice might include instructing Husband to tell the receptionist at his place of work to lie to deputy sheriffs about his whereabouts; to go out the back door if a deputy comes to Husband's work place or home; or to stay away from his residence.

Opinion #2:

No, such conduct is unethical for a number of reasons. First, service of process is a necessary component of the judicial system and a lawyer is an officer of that system. Counseling a client in ways to evade service interferes with the judicial system and is, therefore, prejudicial to the administration of justice in violation of Rule 8.4(d). Second, a lawyer should not counsel a client to engage, or assist a client in conduct that the lawyer knows is fraudulent, in violation of Rule 1.2(d). Finally, advising a client to take evasive action solely for the purpose of delay is disrespectful of the rights of Wife in violation of Rule 4.4 which provides in part, "[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to…delay…a third person…."

Inquiry #3:

May Attorney X advise his client to evade service of process provided he does not tell the client how to evade service?

Opinion #3:

No. See opinion #2 above.

Inquiry #4:

Is the prohibition on instructing a client to evade service applicable to the service of other court documents such as subpoenas?

Opinion #4:

Yes.