Bar Rules

UPL Advisory Opinion No. 2010-1

State Bar Programs / Part XIV - Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law / Unlicensed Practice of Law Advisory Opinions / UPL Advisory Opinion No. 2010-1

Issued by the Standing Committee on the Unlicensed Practice of Law on June 4, 2010. Approved by the Supreme Court of Georgia on September 12, 2011.

QUESTION PRESENTED
Assuming no traverse has been filed by any party in a garnishment action, is the completion, execution and filing of an answer in the garnishment action by a non-attorney employee of the garnishee considered the unlicensed practice of law?

SUMMARY ANSWER
A nonlawyer who answers for a garnishee other than himself in a legal proceeding pending with a Georgia court of record is engaged in the unlicensed practice of law.

OPINION
"The summons of garnishment shall be directed to the garnishee, commanding him to file an answer stating what money or other property is subject to garnishment." O.C.G.A. § 18-4-62(a). The "answer must be filed with the court issuing the summons," and "if the garnishee fails to answer the summons, a judgment by default will be entered against the garnishee for the amount claimed by plaintiff against the defendant." Id.

The summons of garnishment form set out in O.C.G.A. § 18-4-66(2) states that the garnishee is to file an "answer in writing with the clerk of this court...." The garnishee is warned that "[s]hould you fail to answer this summons, a judgment will be rendered against you for the amount the plaintiff claims due by the defendant." Id. O.C.G.A. § 18-4-82 refers to the document prepared by the garnishee as an "answer," as does O.C.G.A. § 18-4-97(a): "The garnishee shall be entitled to his actual reasonable expenses, including attorney's fees, in making a true answer of garnishment."

A properly served garnishee is bound to file an answer with the appropriate court. If the answer is not filed, the garnishee faces a default judgment. The inescapable conclusion is that a garnishment action is a legal proceeding. That being the case, the Committee examines who is permitted to file an answer to a legal proceeding that is pending with a Georgia court.

"Georgia's citizens, of course, have a constitutionally protected right of self-representation." In re UPL Advisory Opinion 2002-1, 277 Ga. 521, 522 n.3 (2004). A party to a legal action can also be represented by a duly licensed attorney at law. Ga. Const. (1983), Art. I, Sec. 1, Para. XII. As far as corporate self-representation, "[i]n this state, only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record, including any proceeding that may be transferred to a court of record from a court not of record." Eckles v. Atlanta Technology Group, 267 Ga. 801, 805 (1997). The Georgia Court of Appeals concluded "that the rationale and holding of Eckles should, and does, apply to limited liability companies." Winzer v. EHCA Dunwoody, LLC, 277 Ga. App 710, 713 (2006). See also Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 417 (2006).

The Committee concludes 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.



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