Feb. 8. 2012
On February 7, 2012, Governor Nathan Deal signed into law HB 683, which among other things, permits a company to file its own answers to garnishments without being deemed to be engaged in the unlicensed practice of law. This essentially means that companies may answer garnishments without an attorney under the law. However, they will still need an attorney if a traverse or claim is filed. See O.C.G.A 18-4-8(b), (c).
It remains uncertain, however, whether this law is constitutional. The Supreme Court of Georgia had previously approved an Advisory Opinion (below) which concluded that “a nonlawyer who answers for a garnishee other than himself in a proceeding pending in a Georgia court of record is engaged in the unlicensed practice of law.” Thus, the Supreme Court held that companies may not answer garnishmentswithout an attorney.
This creates a tension between the Judicial Branch, and the Legislative & Executive Branches of the government.
The meaning of this tension is uncertain. Until the issue is resolved, the safest course of action is for companies to continue to use attorneys to answer garnishments. Companies will receive the additional benefit of receiving improved advice in special and tricky situations.
Therefore, if a garnishment summons is served upon your company, and you do not have an in-house attorney who is experienced in garnishments, consider consulting with an attorney to assist you in responding to the garnishment action.
Jim Fletcher is a Georgia attorney who is experienced in garnishment proceedings, and can assist your company.
The State Bar of Georgia’s Standing Committee on the Unlicensed Practice of Law issued UPL Advisory Opinion 2010-1:
QUESTION PRESENTED
Assuming no traverse has been filed by any party in a garnishment action, is the completion, execution and filing of an answer in the garnishment action by a non-attorney employee of the garnishee considered the unlicensed practice of law?
SUMMARY ANSWER
A nonlawyer who answers for a garnishee other than himself in a legal proceeding pending with a Georgia court of record is engaged in the unlicensed practice of law.
OPINION
“The summons of garnishment shall be directed to the garnishee, commanding him to file an answer stating what money or other property is subject to garnishment.” O.C.G.A. § 18-4-62(a). The “answer must be filed with the court issuing the summons,” and “if the garnishee fails to answer the summons, a judgment by default will be entered against the garnishee for the amount claimed by plaintiff against the defendant.” Id.
The summons of garnishment form set out in O.C.G.A. § 18-4-66(2) states that the garnishee is to file an “answer in writing with the clerk of this court….” The garnishee is warned that “[s]hould you fail to answer this summons, a judgment will be rendered against you for the amount the plaintiff claims due by the defendant.” Id. O.C.G.A. § 18-4-82 refers to the document prepared by the garnishee as an “answer,” as does O.C.G.A. § 18-4-97(a): “The garnishee shall be entitled to his actual reasonable expenses, including attorney’s fees, in making a true answer of garnishment.”
A properly served garnishee is bound to file an answer with the appropriate court. If the answer is not filed, the garnishee faces a default judgment. The inescapable conclusion is that a garnishment action is a legal proceeding. That being the case, the Committee examines who is permitted to file an answer to a legal proceeding that is pending with a Georgia court.
“Georgia’s citizens, of course, have a constitutionally protected right of self-representation.” In re UPL Advisory Opinion 2002-1, 277 Ga. 521, 522 n.3 (2004). A party to a legal action can also be represented by a duly licensed attorney at law. Ga. Const. (1983), Art. I, Sec. 1, Para. XII. As far as corporate self-representation, “[i]n this state, only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record, including any proceeding that may be transferred to a court of record from a court not of record.” Eckles v. Atlanta Technology Group, 267 Ga. 801, 805 (1997). The Georgia Court of Appeals concluded “that the rationale and holding of Eckles should, and does, apply to limited liability companies.” Winzer v. EHCA Dunwoody, LLC, 277 Ga. App 710, 713 (2006). See also Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 417 (2006).
The Committee concludes that a nonlawyer who answers for a garnishee other than himself in a proceeding pending in a Georgia court of record is engaged in the unlicensed practice of law.
– END OF OPINION–
Source: http://gabar.org/programs/unlicensed_practice_of_law/upl_advisory_opinions/#2010-1
The Georgia Supreme Court has approved the Opinion in the matter of IN RE: UPL ADVISORY OPINION NO. 2010-1, Case No. S11U0028 (Ga. 2011). The approval reads:
Atlanta September 12, 2011
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed.
IN RE: UPL ADVISORY OPINION NO. 2010-1
This Court granted review of UPL Advisory Opinion No. 2010-1, issued by the Standing Committee on the Unlicensed Practice of Law on June 4, 2010. With this order, we hereby approve UPL Advisory Opinion No. 2010-1 pursuant to State Bar Rule 14-9.1 (g) (4).
– End of Order–
Additionally, Justice Nahmias wrote a concurring opinion:
NAHMIAS, Justice, concurring.
I agree with the Court that, under existing law, we must approve UPL Advisory Opinion No. 2010-1, which concludes that a nonlawyer, such as a clerical employee of a corporation, who answers for a garnishee other than himself in a legal proceeding pending with a Georgia court of record is engaged in the unlicensed practice of law. I think it is important to note, however, the suggestion made by the State Bar of Georgia in its reply brief that a new court rule, similar to Uniform Superior Court Rule 15.1, be adopted to allow nonlawyer employees and agents of corporations and other entities to file garnishment answers, in order to alleviate the negative effects this UPL opinion may have on businesses dealing with routine garnishment proceedings. I am not sure a rule change would be sufficient; a statute similar to OCGA § 18-4-61, which underlies Rule 15.1, may be required. But the State Bar and the businesses and business associations that submitted briefs raising these concerns should understand that today€™s decision leaves them free to seek such a remedy from the Judicial Council or the General Assembly.
– End of Concurring Opinion–
On September 30, 2011, the Fulton County Daily Report published an article: “New Garnishment Rule Criticized”. The article makes clear that the issue has the attention of the bar, and interested parties may try to change this result.
On February 3, 2012, the Daily Report published an article: “Bill allowing garnishments by non-lawyers would infringe on Georgia Supreme Court’s power” which argued that the revisions to the law might not be valid. The article cited the case of Wallace v. Wallace, 225 Ga. 102, 109 (1969), and argued that because the Supreme Court “has the inherent and exclusive authority to govern the practice of law in Georgia, including jurisdiction over the unlicensed practice of law” that the revisions to the law would violate the separation of powers between the branches.