Sep 23, 2011

Georgia Supreme Court Rules that Employers MUST Use Attorneys to Answer Garnishments

Under Georgia law, corporations are required to utilize legal counsel to represent them in any litigation or other proceeding before a court of law. However, when it comes to garnishment proceedings, employers throughout the state often have human resources or payroll employees respond to and comply with any garnishment notices. Last week, the Georgia Supreme Court issued a ruling that disallows this practice, holding that a garnishment action constitutes the type of legal proceeding that requires legal representation. Otherwise, the non-attorney who completes the form will engage in the unauthorized practice of law.

As many Georgia employers are aware, a Summons of Continuing Garnishment (“Summons”) requires an initial Answer of Continuing Garnishment (“Answer”), followed by additional Answers every 45 days until the expiration of the Summons, receipt of a renewed garnishment, fulfillment of the amount owed by the employee, or the employee’s termination. Typically, these Answers are filled out and submitted by a designated corporate employee, who also calculates the proper amount to withhold and submit with each Answer. In fact, the Answer forms provided by many Georgia courts are, by their own terms, designed to be completed by non-attorneys. However, under the Georgia Supreme Court’s ruling in In re: UPL Advisory Opinion No. 2010-1, each of these Answers must be completed by a licensed Georgia attorney. In order to comply with this requirement, an employer will have to send a Summons to their attorney, who will file the Answer on the employer’s behalf, and then continue to provide the attorney with wage information on a regular basis for subsequent Answers during the garnishment period. Not only is this requirement impractical from a logistical standpoint, but it also increases the cost of dealing with employee garnishments by the necessary inclusion of counsel. While it is expected that the Legislature may enact a statute to allow employers to continue the practice of answering garnishments without representation, such a measure will likely take months to come to fruition. Until such a statute is passed into law, employers should have either outside or in-house counsel, who is admitted to the Georgia Bar, submit garnishment Answers to avoid liability for the unlicensed practice of law.

Although the ruling applies specifically to wage garnishments, its scope likely includes tax liens, child support orders, or any other obligation that is imposed by a court of law and requires the filing of a formal response with the issuing court or any other court of record. We will continue to keep you apprised of any developments.

If you have any specific questions about this new requirement, please contact your employment counsel at Smith, Gambrell & Russell, LLP.

Share via
Copy link
Powered by Social Snap