March 4, 2013
Authored by: Bill Custer and Julia Fenwick Ost
This update is provided to our earlier post regarding the passage of HB 683 in 2012 permitting banks to answer garnishments without the need for an attorney. As you may recall, we advised you then that there may subsequently be a challenge to the statute of on the grounds that the statute allegedly violates the separation of power principle set forth in the Constitution of Georgia. As we predicted, Georgia Legal Services Program (“GLSP”) has recently challenged HB 683 on precisely this ground.
GLSP is challenging this law on the grounds that the General Assembly cannot define the practice of law and that defining the practice of law is instead reserved for the Supreme Court of Georgia. Specifically, GLSP is seeking an advisory opinion from the Standing Committee on the Unlicensed Practice of Law of the State Bar of Georgia finding that only lawyers should be permitted to file answers in garnishment cases.
In its brief, GLSP states that “the Act is bad policy for all involved in garnishment proceedings because of the indispensable role that lawyers play in the administration of justice.” GLSP further provides: “[T]he Act, if unchecked, will establish precedent permitting the Georgia General Assembly to determine what constitutes the authorized practice of law – a power vested solely with the judiciary.”
Paula Frederick, State Bar General Counsel, has confirmed receipt of GLSP’s request for review on February 11. The Standing Committee, chaired by Presiding Judge Sara Doyle of the Georgia Court of Appeals, is scheduled to meet on April 19 and will consider the request on that date. Pursuant to bar rules, the Committee is required to hold a public hearing on GLSP’s request and, should the committee agree with GLSP that allowing non-attorneys to answer garnishments constitutes the unauthorized practice of law, the committee will then file an opinion with the Georgia Supreme Court. If the Supreme Court reviews the opinion and approves it, the opinion will have the force of law. Otherwise, the opinion will be binding only to the bar, the committee, and the petitioner, and, pursuant to State Bar Governance Rule 14, will be treated as “persuasive authority” only.
As a reminder, should the law ultimately be declared unconstitutional by the Georgia Supreme Court, any answers that have been prepared and filed over the signature of a non-lawyer will need to be amended to avoid the possibility of a default. See Peachtree Plastics, Inc. v. Verhine, 242 Ga. App. 21 (2000)(the filing of an answer by a non-attorney is an amendable defect that can be cured when, prior to entry of a pretrial order, an attorney representing the party files an amended answer).
Once again, all banks should continue to be alert as to future developments on these issues.