Client Alert: New Law Overturns Requirement That Employers Use Attorneys to Answer Garnishments

by | Oct 1, 2011 | Client Alert, Garnishment

As of September 12, 2011, businesses now need to enlist the assistance of a licensed Georgia attorney in order to file an Answer to a Summons of Garnishment.  The new procedures are the result of the Georgia Supreme Court’s adoption of an advisory opinion of the State Bar of Georgia that a non-lawyer employee answering a garnishment is engaging in the unauthorized practice of law.  The Georgia Bar reasoned that because corporations and limited-liability companies have no right of self representation, they must be represented by an attorney in any legal proceeding.  The Bar concluded that because a garnishment action is a legal proceeding, a non-lawyer is legally-precluded from answering a garnishment summons or filing routine answers in garnishment proceedings.  The prohibitions apply to actions in state or superior court only, and do not apply to garnishments issued by a magistrate/small claims court.

Although the State Bar’s Advisory opinion was initially issued in June 2010, it did not carry the force of law.  As such, many employers continued to use non-lawyers to answer garnishments.  With the Supreme Court’s two-sentence September 12 ruling approving the advisory opinion, that practice is no longer permissible.  However, Justice David Nahmias wrote a concurring opinion acknowledging the court’s awareness of the potential negative impact on businesses and encouraging businesses to seek redress through the Judicial Council or the General Assembly.

Employers are advised to contact counsel immediately upon receipt of any summons of garnishment.  Businesses that use non-lawyer employees to answer a garnishment summons run the risk of a court entering a default judgment against the employer for failure to file an answer by a licensed Georgia attorney, thus rendering the employer liable for the employee’s entire debt instead of just the amount that would have been withheld.  Non-lawyer employees who attempt to answer a garnishment will also be subject to civil and/or criminal liability for engaging in the unauthorized practice of law.

If you have any questions about this alert or would like assistance in responding to a garnishment summons, please contact Anne-Marie Shipe