Last year the Supreme Court of Georgia issued a ruling that preparing and filing answers in garnishment cases is the practice of law and should only be done by lawyers. That ruling was issued to protect consumers and businesses alike. Both may suffer serious harm by mistakes made in garnishment cases, in which complex law is applied to complex situations in which money is at stake.
Various business interests and a majority of the Georgia General Assembly took exception to that ruling, and House Bill 683 was enacted. It declared that the filing of an answer in a garnishment proceeding was, in fact, not the practice of law.
On the first anniversary of that law's passage, Georgia Legal Services Program lawyers filed a question with the State Bar of Georgia's Standing Committee on the Unlicensed Practice of Law asking it to take up, again, the question of whether filing answers in garnishment cases is the practice of law, as well as reaffirming that, according to the Georgia Constitution, the Supreme Court is the only entity with the constitutional power to define what is and is not a duty that can only be accomplished by a lawyer.
An answer in a garnishment is the means by which a garnishee (such as a bank) tells the court what property it has that belongs to the judgment debtor that is not exempt from garnishment by law.
Both federal and state law set out several types of funds that are exempt from garnishment, as well as specific rules for how wages or other funds may be tapped to pay debts. These laws protect vulnerable consumers whose lives sometimes depend on exempt funds, such as child support and Social Security.
It is the garnishee's legal responsibility to determine whether funds it holds are exempt by law. Without a lawyer to review a garnishment before it is filed, mistakes are often made and low-income people are left without access to their money to pay rent or buy food.
GLSP has a long history of intervening in these kinds of cases to help our clients retrieve their funds. Currently, for example, we represent an elderly woman whose bank account was frozen even though the funds in it came from her only income, Social Security benefits, which are exempt from garnishment by federal law. Furthermore, the debt in question had been incurred by our client's daughter, not our client. Because the bank did not use a Georgia lawyer to analyze the account and the exemption, the bank wrongfully seized her account. Our client, who did not know that the bank planned to freeze her account until it was done, was unable to pay her rent or utilities or buy food, and she incurred late and insufficient funds fees.
In another case, GLSP represented a worker in a dentist's office. Her employer received a garnishment on the worker's wages for a debt that had nothing to do with her job. The dentist, without a lawyer to advise her, took twice as much of our client's pay as was legal and failed to file an appropriate answer to the creditors, which caused a default. The dentist wound up with her own bank account garnished by one of the creditors, who took out the full amount of the debt. Our client suffered because her pay was cut in half for a time.
We can help prevent errors by making sure that corporations responsible for answering garnishments have Georgia attorneys who are applying federal and Georgia law to the facts and avoiding harm to both consumers and businesses. That is why we are asking the UPL Committee to issue an advisory opinion that affirms that, notwithstanding House Bill 683, filing an answer on behalf of a corporate garnishee remains the practice of law, as stated by the Supreme Court of Georgia.
It is the garnishee's legal responsibility to determine whether funds it holds are exempt by law. Without a lawyer to review a garnishment before it is filed, mistakes are made and low- income people are left without access to money.
Michael Tafelski Wingo F. Smith and Michael Tafelski are attorneys with the Georgia Legal Services Program.