UPL Advisory Opinion No. 2002-1
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. 2002-1
Issued by the Standing Committee on the Unlicensed Practice of Law on July 1, 2002. Approved by the Supreme Court of Georgia on January 12, 2004. In re UPL Advisory Opinion 2002-1, 277 Ga. 521 (2004).
Debtor incurs a debt with Dr. A, a sole proprietor. Dr. A transfers the account to Collector C by written "assignment." However, the purported assignment states that the transfer is "for the purpose of collection only." Collector C pays nothing for the account, but has an arrangement with Dr. A to receive a set fee or contingency fee upon collection. Collector C is not an attorney, but files suit on the account against Debtor as "Dr. A by his transferee/assignee Collector C vs. Debtor." In the event the case is contested, Collector C also attempts to present the case in court. Is collector C engaged in the unauthorized practice of law?
Yes. Individuals normally have the right to represent themselves with regard to legal matters to which they are a party. In the scenario set out above, however, Collector C is not the true party in interest, but is instead taking legal action on behalf of another in exchange for a fee. The actions of Collector C violate O.C.G.A. §15-19-50 et seq., the Georgia statute pertaining to the unauthorized practice of law.
Individuals have the right to self-representation. Georgia corporations have certain limited rights of self-representation. Eckles v. Atlanta Technology Group, 267 Ga. 801 (1997); Uniform Magistrate Court Rule 31. Under the circumstances set out above, Dr. A is always free to take action on his own behalf within the limits of the law.
The holder of a chose in action may assign his interest to another. O.C.G.A. §44-12-22. A creditor can, for example, sell an account receivable in exchange for a sum that is fixed and certain, such as a percentage of the indebtedness. If a claim were validly assigned in such a manner, the assignor would relinquish all right, title and interest to the claim, and such title and interest would vest solely in the assignee.
O.C.G.A. §15-19-50 defines the practice of law, in part, as "[r]epresenting litigants in court and preparing pleadings and other papers," "[t]he preparation of legal instruments of all kinds whereby a legal right is secured," and "[a]ny action taken for others in any matter connected with the law." O.C.G.A. §15-19-52 states that under certain circumstances nonlawyers may draw legal instruments for others, "provided it is done without fee and solely at the solicitation and the request and under the direction of the person, firm, or corporation desiring to execute the instrument."
In the situation set out above, there is not a true assignment of the debt, since there is no real transfer of title and interest to the claim. The putative assignment states that it exists "for the purpose of collection only." The "assignment" under these circumstances is in actuality nothing more than a means through which Collector C is attempting to represent Dr. A. Collector C is engaged in the unauthorized practice of law not only because he is representing a third party, but also because he is preparing pleadings and other papers (presumably the complaint and summons) on behalf of Dr. A in exchange for a fee. Private agreements between individuals--no matter what their phraseology--cannot serve to undo acts of the legislature and decisions of Georgia courts.
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