Serving the Attorney

Serving the Attorney

Rule 5(b)(1) names the person to serve before any question of delivery arises: "If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party."¹ The sentence heads Rule 5(b), the provision on how service is made, so it comes before any choice among methods.² A filer who begins by asking whether to mail or hand-deliver the paper has skipped a step, because the first question is which person the paper must reach.

Two conditions must both hold before the attorney becomes the person to serve. The party must be represented, meaning a lawyer is acting for it in the action. And no court order may direct service on the party. The rule yields only to such an order, so a filer's wish to reach the client directly changes nothing.

Each condition has a reason. A party that hires a lawyer has chosen someone to read litigation papers, judge what each one requires, and prepare the response. A paper that reaches only the client may be set aside before the lawyer ever sees it, while a paper that reaches the lawyer arrives where the work will be done. Serving counsel also gives each side one dependable address, which is why later documents may be served on the other lawyers rather than on the parties.³ The court-order condition does subtler work. A judge who sees the whole case may decide that a particular paper must reach the party itself, and the rule leaves that decision to the court so that no filer can make it alone.

Luyster v. Textron applies the rule on these terms. Superior served its cross-claim against the Government electronically on the Government's lead attorney of record and attached a certificate of service evidencing that service.⁴ Rule 5 required service on the attorney, and, read with the court's local rules, it permitted electronic service through the court's transmission facilities.⁵ The Government offered no argument that service on its attorney was insufficient and no showing of prejudice, so the court refused to dismiss the cross-claim.⁶ Nothing in the opinion suggests an order directing service on the Government itself. With the rule satisfied and no harm claimed, the court had nothing to weigh against the service Superior made.

An exam question on this topic usually supplies a paper and a recipient and asks where the paper goes. The answer depends first on whether a lawyer is acting for that recipient.

The attorney rule is conditional from its first words, "If a party is represented by an attorney," so it says nothing about a party who has no lawyer.⁷ Service goes through counsel because counsel will act on the paper, and an unrepresented party has no such intermediary. That party is therefore the person served, and the filer uses the same methods that apply to anyone else entitled to service.

The court-order condition produces the other exception, and it works only through an order.

Because Rule 5(b)(1) fixes the recipient, every method of service that follows is carried out on the lawyer when the party has one. Rule 5(b)(2) lists the ways to serve, and the first is "handing it to the person."⁸ For a represented party with no contrary order, "the person" is the attorney, and the other listed methods read the same way: the delivery, mailing, office drop-off, or electronic transmission is directed to the lawyer. Luyster fits that reading, since the electronic service there went to counsel through the court's transmission facilities.⁹