|
|
||||||||||||||
|
|
Georgia Law Monitor FAR REACHING BAN ON "PRO SE" CORPORATE By:
Dwight A. Meredith Copyright,
1997 In a ruling that is both simple and breathtaking, the Georgia Supreme Court issued a blanket prohibition on the "pro se" appearance of corporations in the courts of Georgia. Eckles d/b/a Atlanta Technology Group v. Atlanta Technology Group, Inc., No. S96A1507 (Sup. Ct. Ga., March 3, 1997)1. (FCDR, March 12, 1997 at 21). At first read, this opinion appears to prevent the casual representation by a corporation in court by its President (or some other officer) without an attorney. On further reflection, this ruling reaches to the desks of the Clerk of Court in every Georgia County, (appellate, superior, state and magistrate) and now absolutely prohibits the common day to day practice of corporate dispossessory filings by non-lawyers, corporate garnishment filings or answers by non-lawyers, corporate collection filings or answers by non-lawyers, and the filing of actions or answers by unrepresented, but incorporated, contractors and subcontractors in construction litigation. This ruling, while sensible and seemingly innocuous, is, in fact, going to have profound and immediate ramifications on the day to day practice of law in the Magistrate and State Courts in Georgia. This article will cover: the ruling, the harm that was addressed in ruling, the known impact of the ruling, the unknown impact of the ruling, and those statutes and cases known to be overruled. I. The Ruling: In what starts as a rather mundane trademark case turns quickly into a ruling of much broader implication. The Supreme Court posed the issue in Eckles, supra, when it wrote:
The Court considered that since almost the formation of the United States corporations have, because they are artificial persons and not natural persons, been unable to represent themselves before the various courts2. It found that after the creation of the integrated Bar in 1963, it had previously concluded that any legislative enactment or inferior caselaw that encroached upon the Supreme Court's power to regulate the practice of law must "give way" to its rulings. Eckles, supra, at 6, [citing, Huber v. State, 234 Ga. 357, 359, 216 S.E.2d 73 (1975)]. It then considered that the "overwhelming majority of the other [United States] jurisdictions have found, ... that allowing laymen to serve as unlicensed attorneys for corporations would be contrary to the public interest." The Supreme Court, then proceeded to strike down all "pro se" corporate representation by holding: "in the exercise of our inherent power over the practice of law in this state, we hereby prohibit such representation."3 Id. Individuals are free to conduct their business in many forms. If they desire to accept the benefits of incorporation (limited liability), they must "accept the burdens, 'including the need to hire counsel to sue or defend in court'..." Id., at 7. II. The Harm Addressed. Much recent "pro se" corporate activity appears to have gotten the attention of the judiciary. Consider the following "pro se" corporate cases that occurred in the last few years: The President of a corporation conducted an entire jury trial (unsuccessfully) on a "pro se" basis in Fulton Superior Court. Ross C. Shaw, Jr., Inc. v. Reynolds, 221 Ga.App. 548, 472 S.E.2d 125 (1996). Hon. Mary Staley, Cobb Superior Court, dismissed an action filed by a corporation proceeding "pro se," against 26 homeowners (later reduced to 6), who merely appeared at a Cobb County Planning Commission hearing and opposed a developer's rezoning request. Atl. Journal-Constitution, Aug. 10, 1996 at C4.4 A corporation, proceeding "pro se," filed a legal malpractice action against the Atlanta law firm Griffin, Cochran & Marshall. Abe Engineering, Inc. v. Griffin, Cochran & Marshall, 212 Ga. App. 586, 443 S.E.2d 1 (1994). A year earlier, the same corporation proceeding "pro se" filed an application in Superior Court to collect on a construction surety bond. Abe Engineering, Inc. v. Travelers Indemnity Company, 210 Ga.App. 551, 436 S.E.2d 754 (1993). Two corporations, acting "pro se," brought suit against a Bank for breach of contract and wrongful foreclosure. The Bank prevailed and the corporations appealed. Appellants, "pro se" filed 17 enumerations of error, all of which Court of Appeals found to be difficult to understand and meritless. Landor Condo v. Bankers First Federal, 204 Ga. App. 212, 418 S.E.2d 772 (1992). A telephone advertising firm filed an entire appeal to the Court of Appeals "pro se," through a corporate officer. Telephone Advertising Corp. of America v. Aaron Rents, Inc., 206 Ga. App. 493, 426 S.E.2d 54 (1992). Corporation brought suit "pro se" to domesticate and collect a Nevada judgment. All corporate trial and appellate court appearances were "pro se." Agency Management v. Escape Travel/Tour Service, 199 Ga. App. 882, 406 S.E.2d 285 (1991). "Pro se" builder sued developer, architect and Homeowner's Association for breach of contract. Builder lost at the trial court and lost its "pro se" corporate appeal. Vernon Bowdish Builders v. Spalding, 196 Ga. App. 370, 396 S.E.2d 24 (1990). III. The Known Impact of Eckles
O.C.G.A. § 18-4-60, et seq., sets out the procedure for filing and prosecuting a garnishment action to collection. O.C.G.A. § 18-4-61, states that an Affidavit for a Summons of Garnishment may be taken by: "The plaintiff, the plaintiff's attorney at law, or the plaintiff's agent ..." (Emphasis Supplied). Once the affidavit is placed before clerk, the summons shall be issued and served on the Garnishee. The Garnishee shall answer no sooner than 30 and not more than 45 days from service upon it. O.C.G.A. § 18-4-62. The debtor shall be given notice. O.C.G.A. § 18-6-64. Defendant may traverse the affidavit. O.C.G.A. § 18-4-65. The statutes and common practice in Georgia provide that non-lawyers typically file, answer and traverse garnishment actions. The Georgia Supreme Court held in Eckles, supra, that "[w]hen a legislative enactment relating to admission to the practice of law conflicts with rules for admission adopted or approved by the judiciary, 'the legislative enactment must give way.'" Id., at 6. They further held that, "we conclude that allowing laymen to serve as unlicensed attorneys for corporations would be contrary to the public interest and, in the exercise of our inherent power over the practice of law in this state, we hereby prohibit such representation." Id., at 9. The simple application of this new ruling to the corpus of garnishment law reveals the apparent conclusion. If a corporation is filing a garnishment, it may no longer be filed by a non-lawyer. If a corporation is named as garnishee, the answer may not be signed and mailed back to the court by a non-lawyer. If the defendant is a corporation, the traverse may not be filed by a non-lawyer. Certain lines and phrases contained in O.C.G.A. §§ 18-4-60, 61, 62, 63, 64 and 65 are overruled by implication. The forms of garnishment set out at O.C.G.A. § 18-4-66 need to be revised to reflect this change in the law.5
O.C.G.A. § 44-7-50, et seq., sets out the procedure for filing and prosecuting a dispossessory action to eviction and beyond. It states in pertinent part:
O.C.G.A. § 44-7-50, states that an Affidavit for a Writ of Possession may be taken by: "[T]he owner or the agent, attorney at law, or attorney in fact of the owner..." Once the affidavit is placed before clerk, the summons shall be issued and served on the tenant. (Emphasis Supplied.) O.C.G.A. § 44-7-51 provides that the tenant shall answer within seven (7) days. O.C.G.A. § 44-7-53 provides for a trial on the dispossessory action if the tenant and demands same; or, for the mere obtainment of the Writ, if the tenant does not answer. A jury trial in dispossessory may be demanded. Hill v. Levenson, 259 Ga. 395, 383 S.E.2d 110, 111-12 (1989); Hallisy v. Snyder, 219 Ga. App. 128, 464 S.E.2d 219 (1995). O.C.G.A. § 44-7-56 provides one method for appealing the dispossessory action to the state or superior court. These statutes and the common ongoing practice in Georgia provide that non-lawyers typically file, answer and appear at the call of dispossessory calendars for corporate landlords. As was true of this rational in garnishments, the simple application of Eckles, supra, to the corpus of dispossessory law reveals the apparent conclusion. If a corporation is filing for a Writ of Possession, it may no longer be filed by a non-lawyer. If a corporation is named as defendant in a dispossessory action, the answer may not be signed and filed by a non-lawyer. If the defendant is a corporation, the court hearing at the magistrate, state or superior court level may not be conducted by a non-lawyer. Certain lines and phrases contained in O.C.G.A. §§ 44-7-50 through 56, are overruled by implication. Therefore, any forms for a Writ of Possession would need to be revised to reflect this change in the law.
O.C.G.A. § 15-10-43, et seq., sets out the procedure for filing and prosecuting a Magistrate Court civil action. It states in pertinent part:
Once the statement is placed before the clerk, it shall be served on the defendant (or registered agent) personally. Id. The defendant shall have thirty (30) days to answer the statement of claim to avoid default. Id. O.C.G.A. § 15-10-44 provides for the method of trial, if any. O.C.G.A. § 15-10-41 provides for the method of appeal to the state or superior court. As with garnishments and dispossessories, the magistrate civil statutes and common ongoing practice in Georgia provide that non-lawyers typically file, answer and appear at the call of magistrate actions for many corporations. As was true of this rational in garnishments and dispossessories, the simple application of Eckles, supra, to the corpus of magistrate civil law reveals the same apparent conclusion. If a corporation desires to file a civil action in Magistrate Court, it may no longer be filed by a non-lawyer. If a corporation is named as defendant in a Magistrate civil action, the answer may not be signed and filed by a non-lawyer. If the a corporation is a party to an action in Magistrate court, it may not proceed at hearing or trial by agent or non-lawyer representation. Certain lines and phrases contained in Magistrate forms at O.C.G.A. § 15-10-48 are overruled by implication.
While the courts utilized and methods of pleading are too varied to summarize in one paragraph, suffice it to say the that "pro se" practice heretofore conducted by corporate general contractors and subcontractors in the Appellate, Superior, State and Magistrate Courts of Georgia is over. It is somewhat of an unanswered question concerning whether this ruling would extend to the mere filing of a materialman's lien under O.C.G.A. § 44-14-361.1(a)(2), so as to make it defective without an attorney's signature. This author's feeling is that it would not. However, the required civil action that must be commenced "within 12 months," O.C.G.A. § 44-14-361.1(a)(3), is clearly within the ambit of this ruling.
Eckles, supra, applies to all Inc.'s, L.L.C.'s, and P.C.'s. Make no mistake about it, the ruling applies to all Georgia Corporations appearing in any Georgia Court. Eckles, applies to all to domestic corporation organized pursuant to O.C.G.A. § 14-2-101, et seq., and "foreign corporations" authorized to do business in Georgia. It applies to all non-profit corporations organized pursuant to O.C.G.A. § 14-3-101, et seq. It applies to all professional corporations organized pursuant to O.C.G.A. § 14-7-1, et seq. It applies to all Limited Liability Companies, O.C.G.A. § 14-11-100, et seq. This ruling does not apply to nor extend to sole proprietors or d/b/a's. "John Doe d/b/a 'John Doe Drywall'" may still appear and defend without an attorney. It does not appear to apply to nor extend to any general partnership organized before, under or pursuant to the Uniform Partnership Act, O.C.G.A. § 14-8-1, et seq.6 It also appears not to apply to Limited Liability Partnership, ("Limited," "Ltd.," "L.L.P.," "LLP,"). IV. The Unknown Impact of Eckles
One issue that is bound to be litigated back to the Georgia Supreme Court regardless of the opinion of this author, concerns the effect of important pleadings filed by a non-lawyer. After Eckles has been in place for a while, what will be the legal effect of an answer or response to motion for summary judgment is filed by a corporation's non-lawyer agent in violation of Eckles? Eckles now requires a Georgia attorney's signature. Is the pleading to be considered a complete nullity and thus, no answer. (Ergo, default?) Or, is it an amendable defect? The current status of Georgia law would tend to indicate that it is an amendable defect (at least, up until the entry of a pretrial order). It would appear that the a defective answer or response to a motion for summary judgment would be a pleading that could be amended by the addition of a Georgia lawyer's signature. O.C.G.A. § 9-11-15(c); Bandy v. Hospital Authority of Walker County, 174 Ga. App. 556, 332 S.E.2d 46, 47 (1985); MCG Development Corp. v. Bick Realty Company, 140 Ga. App. 41, 230 S.E.2d 26 (1976). See also, Joyce's Submarine Sandwiches, Inc. v. California Public Employee's Retirement System, 195 Ga. App. 748, 395 S.E.2d 257 (1990) (allowing defective affidavits to be amended and, apparently, allowing relation back). If, however, your client is able to get a ruling on a motion to strike or a motion to dismiss before the opponent gets the defect cured, your client wins.
Since existing Georgia law holds that pleadings filed by corporations proceeding "pro se" in the Appellate Courts, Superior Courts, State Courts and Magistrate Courts of this state, are now defective, clerks in all 159 Counties (and the Appellate Courts) should begin rejecting proposed filings that do not comply with Eckles, supra. While it is certainly beyond the power of this author (and probably beyond even the power of the Georgia Supreme Court) to ever instruct a court clerk concerning what to accept for filing, these rogue "pro se" corporate pleadings will now start their life journey as "defective" and be subject to motions to strike and motions to dismiss unless corrected. Given that they are born defective, they simply should be corrected at the filing desk or not be accepted for filing until corrected.
The thrust of Eckles, supra, is apparently to prohibit "pro se" representation by artificial persons before the courts of Georgia. There are, however, some strange anomalies with regard to substance and form. If three CPAs practice as a P.C., they must hire an attorney to defend them. However, if they happen to be a general partnership when they are sued, they may enter an appearance "pro se." V. Statutes and Cases Overruled. It is with some caution that this author uses the term "overruled." The Georgia Supreme Court held that when a statute or case stands in the way of its ruling in Eckles or its inherent power to regulate the practice of law in Georgia, that statute or case must "give way." Eckles, supra, at 6.
The following statutes appear to be modified by Eckles. O.C.G.A. § 18-4-60 through 65. The forms at O.C.G.A. § 18-4-66. O.C.G.A. § 44-7-50 and 51, 53, and 56. O.C.G.A. § 15-10-41, 43 and 44. The forms at O.C.G.A. § 15-10-48. Uniform Magistrate Court Rule 31 has been overruled or modifided, at least to the extent it authorizes suit by a non-lawyer on behalf of a corporation. This is by no means an exhaustive list. Any statute in the voluminous Georgia Code that expressly authorized a Georgia or foreign corporation to sue, appear or defend in a Georgia Court is modified. Eckles, supra, at 6.
Universal Scientific, Inc. v. Wolf, 165 Ga. App. 752, 302 S.E.2d 616 (1983), is expressly overruled. In Universal, the trial court was reversed for striking a "pro se" corporate answer filed by the president of a corporation. The Court of Appeals found that Georgia statutes allowed the corporate chairman to defend the corporation "pro se." The court expressly overruled, Knickerbocker Tax System, Inc. v. Texaco, Inc., 130 Ga. App. 383, 203 S.E.2d 290 (1973). In Knickerbocker, a Georgia corporation was allowed to defend an action against it without a lawyer and it was further allowed to amend its initial "pro se" answer by amendment adding the name of a licensed attorney. The Court expressly overruled Dixon v. Reliable Loans, Inc., 112 Ga. App. 618, 145 S.E.2d 771 (1965), which allowed a corporation to appear and defend itself in the Superior Court of Colquitt County because the statute which defined the practice of law contained the saving language for a corporation: "[p]rovided, however, that nothing herein contained shall prevent any corporation, voluntary association, ... [from appearing and suing or defending itself]."
The 1983 Attorney's General's Opinion has been overruled. The Opinion that held: "Only a member of the Georgia State Bar may represent another in a proceeding in magistrate's court, but a corporation may appear pro se in such a proceeding by and through its non-attorney officer or employee."7 1983 Op. Att'y Gen. No. U83-73 is overruled. VI. Conclusion. Short of a Constitutional Amendment, the Eckles' Rule is here to stay. To the extent the General Assembly wishes to move to change this ruling, it is not going to be easy. Because this ruling bristles with overtones of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), this "separation of powers"8 ruling cannot be set aside by a mere legislative enactment. Justice Carley, writing for an almost unanimous Supreme Court, has again said that it is only the Georgia Supreme Court, not the Governor of this State, not the General Assembly, not the Court of Appeals, and not the officials at the State Bar of Georgia, who shall pass on the authorization to file, defend and argue cases before the courts of this State. Footnotes 1. FCDR, March 5, 1997, at 4 Back to text of article at this footnote 2. The Court cites the case that eliminated the Bank of the United States. Osborn v. United States Bank, 22 U.S. 738, 830, (9 Wheat.), 6 L.Ed. 204 (1824). Back to text of article at this footnote 3. It then went on to state that any statutes and caselaw in conflict with this ruling were, necessarily, overruled. Back to text of article at this footnote 4. The dismissal of suit is reported in a subsequent AJC. That citation is presently unknown to this author. Back to text of article at this footnote 5. The Garnishment forms for both a Regular and Continuing Garnishment in Fulton County contain the following language: "plaintiff, agent or attorney at law..." Either this language needs to be changed in light of Eckles, supra, or and additional signature block for the signature of an attorney needs to be added to the form. Back to text of article at this footnote 6. There is a substantial unknown with regard to partnerships. The definitions added with the Uniform Partnership Act ("UPA"), O.C.G.A. § 14-8-2(7), et seq., state that a "'Person' shall include natural person, partnership, limited liability partnership, ... or corporation." All activating portions of the statute then use the word "person." It seems unlikely this broad definition would include partnerships in the prohibition against "pro se" representation, however, it is now, at least, a "gray" issue. Back to text of article at this footnote 7. This quote was taken from the Official Comments and may or may not be a direct quote from the Opinion. Back to text of article at this footnote 8. "Only this court has the inherent power to govern the practice of law in Georgia." Eckles, at 5. Back to text of article at this footnote Notice: Disclaimer of Attorney Client Relationship by mere use of this website. The mere reading or accessing this website does not create an attorney client relationship. Emailing the firm or using the legal forms posted does not constitute and create an attorney client relationship. If you would like to inquire about possible legal representation, please be aware that we cannot represent you until we know that doing so will not create a conflict of interest for you or our present clients. If you wish to initiate an attorney client relationship, we need the opportunity to conduct a conflict search, review your case and materials and, if appropriate in your situation, complete an engagement letter. Additionally, any information presented on this site is the opinion of the author and does not necessarily reflect the opinions of Wood & Meredith, LLP. These articles posted are not intended to provide specific legal or tax advice, but are intended only to generally familiarize the reader with the subject matter. Matters of specific legal or tax nature should be discussed with a competent attorney or tax professional specializing in that particular field or practice. All use of this website is subject to the Contract of Terms.
Copyright © 2003 Wood and Meredith, LLP. All Rights Reserved. |
|||||||||||||
