On March 3, 1997, in a shocking case of Ekles v. Atlanta Technology Group, Inc., the Georgia Supreme Court held that corporate employees or agents can no longer represent their corporations in court or in pleadings. In reaching its decision, the Georgia Supreme Court, in part, held that letting non-lawyers represent corporations is “contrary to the public interest”.
The impact of this case could be both temporary and dramatic. The impact could be temporary since a brief for reconsideration has already been filed by several parties including Attorney General Michael Bowers. The impact also appears to be shortlived because State Representative James Martin has introduced a bill to eliminate some of the Ekles decision.
The impact, until reversed or statutorily changed, is likely to be dramatic. It alters many business practices in Georgia and reverses long-settled statutory and common law decisions. By requiring the use of attorneys to represent corporations, the Supreme Court has significantly increased the cost of doing business in Georgia, particularly for small businesses. Companies, large and small, regularly send employees to court on a variety of legal issues, such as landlord-tenant and garnishments.
In reaching its conclusion, the Georgia Supreme Court seemed to even be second-guessing itself by stating the decision is one of first impression, not clearly foreshadowed by precedent and thus the decision should not take effect until the opinion is published in the advance sheets. The editor of the Supreme Court opinions has indicated that May 15, 1997 is the earliest the opinion could be published and that it might not appear until June 5, 1997.
A possible contributing factor to the Supreme Court’s ruling is the State Bar of Georgia, which, in a different case decided the same day, took the position that the Supreme Court should re-think the 1973 Court of Appeals decision, which reluctantly allowed non-lawyers to represent corporations. In its brief, the State Bar of Georgia argued that the Court should recognize that the lay public and the general welfare would be better served if corporations were not permitted to practice law.
One of the most shocking facts of the Ekles ruling is that neither party had ever raised the issue of corporate representation. Thus, the Georgia Supreme Court brought the issue to the case on its own and used its own issues to decide the case. This is yet another example of the concept that you never know what will happen in a courtroom.
While many attorneys and most corporations are against the Ekles ruling, they are not alone. Most magistrate court officials are likewise opposed to the notion of lawyers handling corporate cases in magistrate court. In the words of Fulton County Magistrate Louis Levenson “requiring lawyers would make things longer and more complex since it takes a lawyer two minutes to say good morning”. The impact on magistrate courts would be profound since lawyers would slow down what is typically a very informal and quick proceeding.
While the Ekles decision is clearly controversial, it appears to be the norm in the United States. Only Louisiana and New Hampshire have allowed corporate pro se representation in their courts, while thirty-eight states specifically prohibit the practice. All who appear in magistrate court should take note of the Ekles ruling until it is specifically modified or withdrawn. It would appear that the Georgia Supreme Court will have an additional opinion of some type to clarify and possibly limit its ruling in Ekles. However, the court may choose to let Ekles stand until formally challenged in subsequent cases. In any event, those who appear regularly in magistrate court should contact their attorney in case his or her assistance is required in the near future.
Mr. Busch is an attorney specializing in commercial and construction litigation for Busch, Reed, Jones & Leeper, P.C. in Marietta, Georgia