Georgia Supreme Court Ruling Leaves Employers In Garnishment Limbo

 

On September 12, 2011, the Georgia Supreme Court adopted Advisory Opinion No. 2010-1 issued by the State Bar of Georgia Standing Committee on the Unauthorized Practice of Law, ending the routine practice among companies with employees working or residing in Georgia of using human resources personnel, clerical employees, or paralegals to answer garnishments in proceedings in Georgia state or superior courts. Specifically, Advisory Opinion No. 2010-1 states 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." The new rule appears to likewise prohibit in-house lawyers who are not licensed in Georgia from handling garnishments in Georgia state and superior courts. Garnishment proceedings in magistrate courts are not impacted by this decision.

There is hope, however, that the significant burden that the Supreme Court's decision places on corporate employers doing business in Georgia could be short-lived. At the same time that the Georgia Supreme Court adopted Advisory Opinion No. 2010-1, Justice David Nahmias issued a concurring opinion in which he pointed out that a statutory change might alleviate the negative effects that the Advisory Opinion may have on businesses dealing with routine garnishment proceedings, and stated that businesses with Georgia employees "should understand that today's decision leaves them free to seek such a remedy from . . . the Judicial Council or the General Assembly."

In the meantime, companies with employees working or residing in Georgia should reexamine their garnishment processes and ensure that they are complying with the state Supreme Court's decision. Indeed, failure to comply with the decision will have potentially serious consequences, including the entry of default in a garnishment proceeding -- a result that can shift the entirety of the employee's debt to the employer -- and could lead to criminal and civil sanctions for the unauthorized practice of law. To avoid these potential pitfalls, it is essential for companies with Georgia employees to have a licensed Georgia attorney review and sign garnishments filed in Georgia state and superior courts.

By: Bob Stevens, Ben Briggs and Andrew Weiner

Bob Stevens is a partner in Seyfarth's Atlanta office, Ben Briggs is a partner in the firm's Atlanta office, and Andrew Weiner is an associate in the firm's Atlanta office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, Bob Stevens at bstevens@seyfarth.com, Ben Briggs at bbriggs@seyfarth.com or Andrew Weiner at alweiner@seyfarth.com.