• Garnishment Answers in Georgia Must Now be Filed by Attorneys
  • September 23, 2011
  • Law Firm: Elarbee Thompson Sapp Wilson LLP - Atlanta Office
  • The Georgia Supreme Court has adopted an Advisory Opinion requiring an attorney to file answers to garnishments in Georgia. Failure to have an attorney sign answers could result in the answer being stricken and the employer going into default. If that happens, the employer becomes liable for its employee's debt from the underlying garnishment proceeding. To prevent this series of events, employers should coordinate garnishment answers with their attorney.

    Garnishments have typically been handled by payroll or other HR employees. However, in a June 2010 Advisory Opinion, the State Bar's Standing Committee on the Unlicensed Practice of Law concluded that a non-lawyer who answers for a business garnishee is engaged in the unlicensed practice of law. The decision is based on the principle that an individual may choose to represent himself in court, but only a licensed attorney is authorized to represent a corporate entity.

    On September 12, 2011, the Supreme Court of Georgia “approved” the Advisory Opinion, making it binding law. In that Order, Justice Nahmias invites - and practically urges - the legislature to create a statutory exception for garnishments which would allow non-lawyers to file answers. Nevertheless, "under existing law," the court felt constrained to approve the Advisory Opinion.

    We believe the legislature will promptly act to create a special statute allowing non-lawyers to answer garnishments. However, absent a special session, the legislature cannot act earlier than January 2012 and the new statute might not become effective until July 1, 2012. In the meantime, we recommend that employers engage a lawyer to answer garnishments to avoid going into default. Creditor attorneys may take this new requirement as an opportunity to move to strike answers not filed by an attorney, which would allow the garnishment to go into default. By operation of law, that means the debt of the employee becomes the debt of the garnishee/employer.