Georgia Supreme Court Opinion Alert: Is Signing a Garnishment Answer the Unlicensed Practice of Law?
Among the wide variety of mandatory withholdings that payroll departments deal with are wage garnishments. In addition to computing and withholding the statutory amounts from the affected employee’s earnings, the employer must file an answer with the applicable court each month and pay the withheld funds into the registry of the court. An employer’s failure to handle this process properly can lead to entry of a default judgment against the employer for the full amount of the judgment that the plaintiff holds against the employee. Thus, Georgia employers must be diligent in complying with the garnishment statutes.
Traditionally, many human resources or payroll personnel have handled this entire process, including the signing and filing of the garnishment answers with the court. On September 12, 2011, however, the Georgia Supreme Court affirmed an opinion issued in June 2010 by the Georgia Bar Standing Committee on the Unlicensed Practice of Law (In re: ULP Advisory Opinion No. 2010-1), which provided that an employee who signs a garnishment answer on behalf of a corporate employer may be charged with the unlicensed practice of law if he or she is not licensed to practice law in Georgia.
To put these rulings in context, for many years the rule has been that corporations may not appear pro se in a Georgia court of record, which technically means that even garnishment answers must be signed by an attorney licensed to practice law in Georgia. But, because neither plaintiffs nor the courts generally would object to answers that were signed by a company employee (and if the issue were raised, an amended answer would cure the defect), most employers assumed the risk and continued to file garnishment answers signed by non-lawyer employees. Given the Georgia Supreme Court’s recent ruling, however, the non-lawyer employee who signs a garnishment answer may be exposed to a charge of the unlicensed practice of law.
In late October 2011, the Chairman of the House Judiciary Committee announced that he will work with the State Bar to draft an amendment to the garnishment statutes to allow routine garnishment answers to be signed by non-lawyer employees of corporations. This seems only fair given the rule that arguably allows a garnishment to be initiated by a judgment creditor by the filing of an affidavit signed by a non-lawyer agent of the plaintiff. Until corrective legislation is passed and becomes law, however, the Georgia Supreme Court’s opinion governs, and garnishment answers must be signed by an attorney licensed to practice law in Georgia.