by Trey Ross, M.Ed., Esq.
Question: I own a small limited liability corporation (“LLC”) in Georgia and I just completed a job for a client’s company which is a sole proprietorship. According the contract, the client’s company owes me about $17,000 but the client refuses to pay me because he says I’ve somehow breached the contract. The client has sued me in State Court and he’s doing so without a lawyer.
In Georgia, can I represent my LLC without an attorney in State Court?
Brief Answer: No. In Georgia, while businesses such as LLCs can be represented by laypeople in Magistrate Court (i.e., a type of small claims court), only a licensed attorney can represent a corporation in “courts of record” (e.g., State Court). On the other hand, a sole proprietor can represent his company without hiring an attorney.
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So, how can a person represent his business in court? That will depend on the type of business structure you chose.
Choosing a business structure should be a result of informed reflection on the pros and cons of each option. For example, forming a sole proprietorship in Georgia doesn’t require much work and their owners can represent the company in court. However, many people find that sole proprietorships are risky since the don’t offer limited liability. On the other hand, choosing to incorporate can limit your liability but it also comes with certain burdens and the right to “self-represent” your company isn’t available…unless you, the company’s owner, is a Georgia-licensed attorney.
The reason: Corporations don’t have the same rights as natural people. To illustrate, although OCGA 1-3-3(14) provides that a corporation is a “person,” Georgia’s courts have interpreted this to mean that a corporation is an “artificial person” without the same rights as that of a “natural person.” To illustrate, Art. I, Sec. I, Par. XII of the Ga. Const. of 1983 provides that “[n]o person shall be deprived of the right to prosecute or defend…[a lawsuit in] the courts of this state.” Georgia’s courts have explained that the “person” described in Art. I, Sec. I, Par. XII refers to “natural persons”[1] (i.e., actual people who have/had life and consciousness).
Do you think the court was being hard on business owners who choose to incorporate? Well, Georgia’s courts provide a very sound rationale. That rationale is as follows: While an individual has a constitutional right to represent himself in court, only a licensed attorney can represent other people in court.[2] Thus, since a corporation is a type of “person,” the corporation’s owner is not representing himself when he advocates for his corporation in Court: the corporation’s owner advocates for another “person.”[3] Again, you generally have to be an attorney to advocate for other people.
NOTE: Georgia offers an exception to the above-mentioned rule. Georgia allows laypersons (i.e., people who are not attorneys) to represent their corporations in courts which are not “courts of record.”[4] State Courts are considered courts of record[5] while Magistrate Court and certain municipal courts are not courts of record.[6]
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[1] See e.g., Eckles v. Atlanta Technology Group, Inc., 485 SE 2d 22, 24 (1997) (providing “…a corporation is an artificial, not a natural, person” and “[a] corporation… can appear only by attorney, while a natural person may appear for himself”).
[2] Id. at 27 (providing “[a] layman who is representing a corporation in a legal matter is in no sense representing himself, but is acting as the legal representative of another ‘person’ entirely).
[3] Id.
[4] Id. at 26 (providing “only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record”)
[5] O.C.G.A. 15-7-41 (2010) (providing: “The state courts shall be courts of record and shall have a seal…”).
[6] See e.g., City of Lawrenceville v. Davis, 233 Ga. App. 1, 4 (Ga. App. 1998) (providing “[u]pon finding that magistrate courts are not required to keep the type of records mandated by OCGA § 15-6-61, we concluded that the magistrate court was not a court of record” and “[w]e similarly conclude that the Municipal Court of Lawrenceville is not a court of record”).