Garnishments and the Unlicensed Practice of Law

So, you get a notice from the court that says that a former employee owes someone else some money, and you need to start taking it out her paycheck each month.

But she left your firm months ago.  What to do?  File the notice in the round file under your desk?  Send it back to the person to whom the ex-employee owes money with a note that says she is no longer employed with you?  If you do either one of these, and nothing else, you will probably find that you are on the hook for the whole amount of the debtNo kidding!

It is probably safe to say that business owners regard employee garnishments as a nuisance.  Why should you spend money hiring an attorney to answer a garnishment action filed against an employee, ex-employee, or even the business itself?  It’s only a simple form, right?

In 2012, the Georgia legislature bowed to pressure and passed a law allowing non-attorneys to answer for garnishees in some garnishment proceedings, even though non-attorneys are normally prohibited from “practicing law” on behalf of a corporation.  Because HB 683, signed into law by Governor Deal on February 7, 2012, clashed directly with a 2011 ruling by the Supreme Court that held only lawyers could file an answer on behalf of a garnishee, the law is now being challenged by the Georgia Legal Services Program, which argued that the law is unconstitutional because only the Supreme Court (and not the legislature) can define what qualifies as “the practice of law.”

The Georgia Legal Services Program’s position just seems to be attorneys protecting attorneys, right?  After all, anyone can file a piece of paper with the court, especially in a matter as seemingly simple as a garnishment action.

Well, maybe not.

Even if it is legal for non-attorneys, such as businesses and their representatives, to file an answer on behalf of the garnishee-business, this does not mean it is necessarily the best business decision do do so. Georgia garnishment laws have very strict time and form requirements, and failure to closely follow these requirements precisely can easily lead to the business being held liable for the amount of the garnishment–in other words, for a debt it had nothing to do with, in a lawsuit of which it had no knowledge, against an employee who is now long gone!

For example, let’s say that a plaintiff obtains a judgment against an employee in the amount of $100,000.00 and files a garnishment against the employee’s wages earned from a business, making the business the garnishee. Let’s now say that the president of the business, a non-attorney, files an answer to this garnishment on behalf of the business but does not file the answer as required by Georgia law. The business may find that it is now held liable for the entire amount of the $100,000.00 judgment because of the improper answer.

The Georgia State Bar has not yet filed an opinion with the Georgia Supreme Court as to whether this new law constitutes the “unauthorized practice of law.”  Regardless, it is undoubtedly the best practice for a business to contact an attorney regarding any garnishment received to ensure that the answer is properly filed and to avoid the business being potentially liable for a judgment against someone else.

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