On September 12, 2011, the Supreme Court of Georgia adopted what, until then, had been an advisory opinion from the State Bar of Georgia declaring that nonlawyers who file responses to garnishments in a Georgia court of record are engaged in the unlicensed practice of law. The court's ruling makes this principle binding law in Georgia, thus largely ending the common practice of having an employer's human resources staff or payroll personnel file responses to garnishments served on the employer.
The Court's Ruling in In re UPL Advisory Opinion No. 2010-1
When an employer is served with a summons seeking to garnish the wages of an employee, the employer must file with the court a response identifying the wages or other sums payable to the employee by the employer. Although Georgia citizens have the right to represent themselves in court, a corporation or limited liability company must be represented in a Georgia court of record (that is, a Georgia state or superior court) by an attorney licensed to practice law in Georgia. The Supreme Court of Georgia's decision clarifies that this rule applies to garnishment proceedings just as it would to any other legal proceeding in a Georgia court of record.
The effect of this ruling is that anyone other than a Georgia-licensed attorney who files a response to a garnishment summons in a Georgia state or superior court on behalf of a corporation, limited liability company, or other employer of which the person is not the sole proprietor will be engaged in the unlicensed practice of law, a criminal offense in Georgia. Moreover, a response filed on behalf of an employer by someone other than a Georgia-licensed attorney will be deemed invalid, and the employer may be held in default – a result that can be quite costly for the employer.
As a result of the Supreme Court of Georgia's ruling, the common practice of having human resources staff, payroll personnel, or third-party vendors who are not Georgia-licensed attorneys file responses to garnishment actions is no longer viable and will, if continued after September 12, 2011, put the employer at risk for enhanced liability and the individual filing the response at risk for criminal charges. Although someone who is not a licensed attorney may prepare the paperwork for a garnishment response, that paperwork must now be approved and filed by a Georgia-licensed attorney if the garnishment proceeding is pending in Georgia state or superior court. (Nonlawyers may continue to file garnishment responses if the proceeding is pending in magistrate or small-claims court.)
The inconvenience created by the court's ruling may be short-lived, however. When the Georgia General Assembly convenes in 2012, there is likely to be a strong push by the business community for the enactment of a statute that will expressly permit nonlawyers to file garnishment responses on behalf of employers.
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