Tuesday, September 28, 2010

Is Mississippi Out of Its Mind?

(Requiring Minimum Pro Bono Work)

The Mississippi Supreme Court proposes mandatory pro bono services by attorneys practicing in the state. According to the National Law Journal, the court is considering a requirement to make lawyers perform 20 hours of pro bono services each year or face a $500.00 fee.

The American Bar Association (ABA) states that Mississippi would be the only state to require pro bono services if the proposal is adopted. There are only seven states that currently require the reporting of pro bono hours.

Most law firms provide a limited number of pro bono hours and some take it quite seriously. The number one U.S. firm, as ranked by American Lawyer magazine based on total pro bono hours in 2010, was Jenner & Block of Chicago, Los Angeles, New York, and Washington, D.C. They were named top firm for two years in a row. The average time devoted to pro bono was 169.5 hours per lawyer, the highest of any law firm. Nearly 91 percent of the firm’s lawyers contributed at least 20 hours to pro bono matters.

In Mississippi, it’s the Mississippi Volunteer Lawyers Project (MVLP) that coordinates and pro bono issues. MVLP is a nonprofit program of The Mississippi Bar Association and Mississippi Legal Services Programs. More than 1,900 Mississippi attorneys are signed up to volunteer their time and expertise to participate in the Project, and as a result, more than 8,000 low income citizens are assisted by the Project each year.

So, why the need to impose requirements for all attorneys to offer a minimum number of pro bono hours annually? Is it a money-making project for the Mississippi Bar Association or just an attempt to make all attorneys in the state give away their time to help low income citizens? Should physicians also be required to provide pro bono services to their patients? Those answers are best left to the attorneys in Mississippi who should have the same freedom as those in all of the other 49 states.

Nelson Tucker is CEO of Process Service Network LLC, based in the Los Angeles area. His firm facilitates process service and legal support services in 127 nations and have served the legal profession since 1978. Information can be found at www.processnet1.com or via processnet@sbcglobal.net.

Monday, September 27, 2010

Why Attorneys Don’t Get It

(when it comes to international service of process)

I have the highest respect for attorneys, barristers and solicitors because of their expertise, dedication to their profession, and their ongoing education. However, the fact is that most attorneys do not seem to understand that cases involving out-of-country defendants require an understanding beyond the ordinary. Normal expectations of service completion within a short period of time are blown to the wind when service is to be performed outside the attorney’s own region.

Here are some issues to be considered when serving legal documents outside of the United State and Canada:

Legal system
Of course, not every country operates their legal system as we do in North America. Many do not use case law (precedent) and do not have clearly defined statutory law. Some nations have a system that is completely “foreign” to ours, such as Shari’a law in Islamic countries. Shari’a deals with many topics addressed by secular law, including crime, politics, economics, and personal matters such as sexuality, hygiene, diet, prayer, and fasting. Where it enjoys official status, Shari’a is applied by Islamic judges, not elected or appointed civil judges. Imagine trying to impose Western law on a nation where Shari’a is the official legal system.

Customs and practices
It is important to understand that corruption and bribery are a normal way of doing business within the legal systems of some countries. Among those countries and regions that stand out are Mexico, the Philippines, Eastern Europe, Russia, certain Mid-East nations and Africa. Often times a process server must obtain “permission” from local officials before serving legal documents. Such permission includes a “payoff” in exchange for the right to serve legal process.

Time Frame
Let’s face it; we are spoiled in North America with quick turnaround on service of process assignments. A local service may be completed in a day, or so, while service in another state may be just a few days. However, all of that changes with service outside the region. Factors such as slow work habits (the “MaƱana” syndrome) in other nations, resentment of the “Ugly American,” or indifference lead to unforeseen and unavoidable delays in completing service assignments. While the service itself may be completed within a reasonably short time, return of the affidavit of service is often the longest delay.

Communication
In our modern world, we expect instant communication from those with whom we associate by use of email, cell phone, telephone, Facebook, etc. However, the vast majority of the world does not have access to such contemporary tools or do not readily have them at their fingertips. For example, a process server in Madagascar may only check her email once every two weeks or one in Cambodia may not be able to receive incoming phone calls. Compound that with global time changes in more sophisticated nations and it is easy to understand why fast communication is not always possible.

Treaties
The United States is a signatory to several treaties which govern service of process issues between nations. Once the documents are forwarded to the Central Authority of another country most, if not all, of the ability to obtain a status is lost. Under the Hague Service Convention, for example, the courts and/or authority in the foreign nation will not respond to requests for status unless an agent appears, in person, to request an update. That process may take days, or weeks, and still does not lead to an acceleration of the completion of the service.

None of this is intended to be an excuse for delays in service of process outside the country of jurisdiction. Rather, it is a “heads up” that each of the above-mentioned factors must be understood by attorneys prior to arranging for service of process abroad. Keeping court deadlines and statutes in mind, it is crucial to allow proper time for completion of service of process outside of the court’s jurisdiction.

Nelson Tucker is CEO of Process Service Network LLC, based in the Los Angeles area. His firm facilitates process service and legal support services in 127 nations. They have served the legal profession since 1978 and can be found at http://www.processnet1.com/ and contacted via processnet@sbcglobal.net.

Friday, September 24, 2010

How Process Serving and Law Firm Practices are Similar

There are striking similarities with the practice of law by an attorney and service of process by a professional process server. Let us examine what the two professions have in common.

Know the Law
Attorneys spend significant time in law school studying laws and developing conceptual knowledge and legal reasoning. They are trained to know the law, or at a minimum, know how to find applicable laws related to a pending case. That education pays off once they are practicing law and preparing cases.

While most professional process servers do not receive formal training or education, they are held to strict standards of having a full working knowledge of laws related to service of process. Those who take the initiative to learn every possible aspect of the profession, whether formally or self-taught, soon rise to the top and are the most successful in their field.

Follow the Law
Lawyers succeed by understanding the law and applying it to their case. While there are normally two competing sides to every case, there is usually case law that will support either side. That is why we have judges.

Process servers must follow the law in a different way than attorneys. The successful process server must understand the statutory law and the applicable case laws related to the type of service they are performing. There can only be one side and the process server must follow the letter of the law, both statutory and case law.

Look After Client's Interests
Attorneys have a duty to protect the interests of their client and to represent them in the best manner possible, ensuring that they receive all the benefits afforded to them under the law. Their duty includes making sure they communicate with their client effectively and in a timely manner. They must advise their client in a professional manner, keeping their objectivity and understanding of the law in mind at all times when counseling their client on any actions they should take. Further, attorneys have a duty to maintain privileged communications between them and their client, ensuring personal information is closely guarded.

Similarly, a professional process server has a duty to their client (the attorney) to perform the assigned services in a professional manner while following established industry standards and practices. They must also advise their client when the requested assignment violates the law or is not in the best interest of the attorney or his/her client. Example: Attorney assigns a service of process for a hearing whose deadline for service has expired. The process server has a duty to advise the attorney of the discrepancy with the attorney having the final say, provided it does not violate the law.

Win the Case
A lawyer has two primary objectives: 1) represent their client properly, and 2) win the case! That is why they are hired and what their client expects.

A process server has a similar goal: 1) represent the interests of their client, and 2) complete the assignment properly.

Build a Reputation
Successful lawyers become successful by practicing in a manner that satisfies the needs of their clients. Their clients become their best "word of mouth" ambassadors which leads to reputation building in a relatively short period of time. It is the quality of the attorney's work, win or lose, that creates a positive or negative reputation.

There are more process servers today than ever before and some are obviously better than others. The number of years of experience and the high quality of work product lead to the building of a positive reputation that makes a process server successful. Highly sought after process servers reach their level of success based on doing exceptional work that meets the needs of their clients.

While attorneys and process servers cannot be compared on a professional scale, the similarities of their responsibilities lead to the conclusion that both are vitally important to the legal process.

Nelson Tucker is CEO of Process Service Network, LLC in the Los Angeles area. He may be reached by email at processnet@sbcglobal.net or by visiting their website at www.processnet1.com. Nelson is active with the American Bar Association, Los Angeles County Bar Association, and the San Fernando Valley Bar Association.

Wednesday, September 22, 2010

Child Custody Issues in the United Arab Emirates (UAE)

When child custody disputes arise between parents, custody decisions are based on Islamic (Shari’a) law. Non-UAE national residents in the United Arab Emirates, whether married to a UAE or non-UAE citizen, may file custody cases in the UAE. Non-residents of the UAE may also file custody cases there, but will need to authorize an UAE attorney to act on their behalf. Non-Muslims are also permitted to file cases in the UAE family courts, under Shari’a law.

In determining issues of custody, UAE courts may take into consideration the parents' religion, place of permanent residence, income, and the mother’s subsequent marital status. Priority is generally given to the Muslim father, irrespective of his nationality, when the mother is a non-Muslim. As a basic starting point under Shari’a law, a Muslim mother may be granted custody of girls under the age of nine and boys under the age of seven, at which time custody may be transferred to the father.

If a child has attained an "age of discretion," that child may be allowed to choose the parent with whom he or she wishes to live. A UAE attorney should be contacted to discuss the definition of "age of discretion."

If the court finds the mother "incompetent," custody of a child, regardless of age, can be given to the father, or to the child's grandmother on the father’s side. A finding of incompetence is left fully to the discretion of the judge. Shari’a courts consistently find parents incompetent if they engage in behavior that is considered to be inconsistent with the Islamic faith. Further, a mother may lose her rights of custody should she remarry. If both the mother and father are ruled incompetent, custody of the children may be given to the child's paternal grandparents.

Non-custodial parents are guaranteed visitation rights, but may have to seek approval from the appropriate authorities. In some cases the custodial parent and family have been very open and accommodating in facilitating the right of the non-custodial parent to visit and maintain contact with the child, but in other cases the custodial parent and family have not been so accommodating.

Dual nationality is not recognized under UAE law. Children of UAE fathers automatically acquire citizenship at birth, regardless of where the child was born. In certain circumstances, UAE mothers can also transmit citizenship. UAE citizens must enter and exit the country on UAE passports.

Exit visas are not required to leave the UAE. However, all persons exiting the country must exit on the passport that shows proof of the person’s legal status in the UAE, meaning either their residence or entry visa.

A parent can obtain a court order that places a travel ban on a child, and this ban will be enforced at all the airports in the country. If a parent attempts to leave with a child who has been placed under a travel ban, this could potentially lead to new legal issues concerning the custody of the child.

Service of process related to child custody matters in the United Arab Emirates is handled by private process servers since no treaties currently exist.

Nelson Tucker is CEO of Process Service Network, LLC, a firm that specializes in international service of process. He has travelled to the United Arab Emirates and served members of the Royal Family and has extensive local contacts there. He can be contacted at processnet@sbcglobal.net or through the firm’s website at www.processnet1.com

Friday, September 17, 2010

Dealing with Difficult Nations: Legal Cases Outside the U.S.

The laws related to service of process differ in every country, just as they differ in many jurisdictions within the United States. The secret is to understand the laws and regulations in the country where the service is to be performed. That is a function of the process service firm that handles your service abroad.

Service of process in some countries is extremely difficult due to conflicts between nations, perceived unfair laws, and customs within the foreign nation.

Perhaps the most egregious nation currently is Mexico. Their government has imposed unfair requirements on cases originating in the United States being served upon Mexican entities. Such restrictions do not apply to other nations and are apparently imposed to protect their citizens and corporations while being used as a tool to gain concessions from the U.S. government.

Cuba and North Korea are other countries that do not look favorably on lawsuits originating in the U.S. to be served upon their citizens. Their governments do not have treaties with the United States and do not allow for service by their own citizens who may act as a private process server. In Cuba, it is common to arrange for a process server from Mexico to enter the country to serve legal documents that originate in the U.S. However, North Korea strictly prohibits service of U.S.-based legal actions within their territorial limits. Violators are subject to prosecution which may result in death.

Saudi Arabia and some of its neighbors have a history of being “unfriendly” to process servers within their borders. In 2003, a process server was killed while serving legal documents for Process Service Network. See page 142 of the following link:
Process Server Killed In Saudi Arabia

While the profession of process serving is often dangerous, by nature, experience process servers take the necessary steps to avoid problems while serving in foreign nations. In most countries outside North America and Western Europe, a process server is typically accompanied by two, or more, body guards which leads to higher costs for service.

No matter which country a service is to be made, consult with a reputable international process server for guidance as to applicable laws in the country where service is being contemplated. They will keep the attorney, and their client, out of potential liability.

Nelson Tucker is CEO of Process Service Network, LLC that specializes in international service of process. He can be contacted at processnet@sbcglobal.net or through the firm’s website at http://www.processnet1.com/

Thursday, September 2, 2010

What’s Wrong with the Hague Convention?

The Hague Service Convention (“Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters”) is a treaty between signatory nations which facilitates, standardizes, and simplifies service of process between party states. It was first enacted in 1965 by members of the Hague Conference on Private International Law. There will be 61 nations participating nations to the treaty, effective October 2010, with the addition of Australia as the newest member.

Now, the problem. Since the Special Administrative Session of the Hague Conference on Private International Law, held at The Hague, Netherlands, only meets every 5 years (last met in 2009), changes and decisions regarding enforcement issues cannot be held until 2014. However, one “rogue” nation has created its own version of the Convention and has imposed roadblocks to prevent service of process on its business entities and citizens.

The government of Mexico has abused the international legal community by requiring that legal documents originating in the United States that are to be served in Mexico include wording that violates the spirit, and letter, of the Hague Service Convention. No other nation is subjected to the requirements imposed by Mexico.

However, the Hague Conference on Private International Law is temporarily held impotent to require Mexico to conform to the rules of the Convention. Further, the U.S. Department of State appears to be non-reactive to the unfair requirements.

“One example of the abuse is Mexico now requires U.S. courts to include the words ‘calendar days’ on its Summons, clearly an infringement on the sovereignty of the United States,” said Nelson Tucker, CEO of Process Service Network, a legal support firm in the Los Angeles, CA area that specializes in international service of process. “Imagine the U.S. trying to tell another country that their legal documents must have certain wording,” said Tucker.

It is uncertain what steps, if any, the U.S. Department of State will take in protesting to the Hague authorities and what can be done to bring Mexico back in line with the rest of the civilized legal world.

Process Service Network, LLC can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net