Wednesday, May 21, 2014

Engaging in the Unauthorized Practice of Law in Indiana - Part II The Court Rules

On 13 May 2014 G. Michael Witte, Attorney No. 1949-15 filed a Verified Petition to Enjoin the Unauthorized Practice of Law against yours truly. In this series of postings I will present to you some information about Mr. Witte, why Indiana Supreme Court Justice Steven David denied my motion to reinstate a felony charge against myself, what Indiana judge recently said I am smarter than most attorneys, and why attorney Vanessa Lopez Aguilera complained. More significantly though I will demonstrate how Mr. Witte and his ilk are attempting to harm children and deprive parents of opportunities to amicably and efficiently resolve their child custody disputes consistent with the policies of the State of Indiana.

To begin the second segment in this series is the complete text of the Indiana rule regarding the unauthorized practice of law. Rule 24 of the Indiana Rules of Court: Rules for Admission to the Bar and the Discipline of Attorneys provides the following;
Rules Governing the Unauthorized Practice of Law
Original actions, under I.C. 33-24-1-2[fn1], to restrain or enjoin the unauthorized practice of law in this state may be brought in this court by the attorney general, the Indiana Supreme Court Disciplinary Commission, the Indiana State Bar Association or any duly authorized committee thereof, without leave of court, and by any duly organized local bar association by leave of court. The action against any person, firm, association or corporation, shall be brought by verified petition, in the name of the state of Indiana, on the relation of the authorized person or association or committee, and shall charge specifically the acts constituting the unauthorized practice. Within time allowed, a respondent may file a verified return showing any reason in law or fact why an injunction should not issue. No other pleading in behalf of a respondent will be entertained. All allegations of fact in the petition and return shall be specific and not by way of ultimate fact or conclusion. The return shall specifically deny or admit each allegation of fact in the petition, and it may allege new facts in mitigation or avoidance of the causes alleged in the petition.
The parties shall file an original and five [5] copies of all pleadings, including exhibits, plus an additional copy for each adverse party. If any exhibit shall be a matter of public record one [1] certified copy thereof shall be filed with the original petition or return. No pleading or exhibit thereto will be considered which has words or figures on both sides of the same sheet of paper.
No restraining order will issue without notice except upon the filing of an undertaking with conditions and surety to the approval of the court. Notice of the filing of the petition will be given and served upon any respondent as may be directed by the court, such notice to be accompanied by a copy of the petition. The clerk will mail a copy of any return to the relator.
The verified petition and return shall constitute the evidence upon which the issues are decided, unless the court shall deem it necessary to, and shall appoint, a commissioner, in which event such commissioner, who shall have full authority to subpoena witnesses and records, shall hear the evidence and report his findings of fact to the court.
A copy of any pertinent agreement, made by any recognized bar association concerning the unauthorized practice of law, may be attached to and made a part of any pleading and unless denied under oath shall be deemed to be a true copy without further proof of the execution thereof.
The costs and expenses incurred by such hearing shall be borne by the losing party. Briefs need not conform to requirements of Appellate Rules 43-48. Arguments will not be heard as of right.
[emphasis added]

Interesting that the Indiana Bar Association may file a complaint on behalf of the State of Indiana against a person whom the bar feels may jeopardize their income by reducing harm against children. This would be like giving an auto manufacturer group the power to bring actions to enjoin the use of “unauthorized use of vehicles”. Can you imagine who or what would be targeted? Older vehicles, motorcycles, bicycles, buses, taxis, passenger trains, and anyone else that would provide modes of transportation that reduced or eliminated the need for every individual to purchase a recently manufactured car. This Petition amounts to the actions of a cartel seeking to protect its financial interest by targeting anyone who may assist others in extricating themselves from financially supporting this cartel.

If you are like me and any other person of common intelligence you are noticing that there is no description in the rule of what constitutes the unauthorized practice of law. Thus, it is entirely subjective at the whim of the person making the allegation.

Due process at a minimum requires notice. Notice to enjoin the unauthorized practice of law should first describe the practice of law but these rules do not. We can look to contempt of court as analogous to injunction and prohibition for an act contrary to general knowledge. To be found in indirect contempt of court one must have been provided an unambiguous order notifying him of what he shall do or is restrained from doing, the order must be lawful, and he must have willfully violated the order[fn2].

This is a fundamental element of American jurisprudence - being informed of the expectations to which one is to comply. In the case of the unauthorized practice of law in Indiana neither the Indiana General Assembly nor the Indiana Supreme Court has first chosen to provide residents of the state subject to the Court's jurisdiction a definition of what acts comprise that.

This is intentional though so that the cartel can use the UPL allegation as a means to attempt to intimidate those who would threaten their financial viability. At the helm is the morally defunct G. Michael Witte who would rather see children suffer through years of parental conflict than an attorney miss a billable hour.

Upcoming segments in this series will include
III - A Preliminary Statement
IV - The Factual Allegations: ACLU Ken Falk
V - The Factual Allegations: Jennifer Bonesteel
VI - The Factual Allegations: Angela Sims
VII - The Factual Allegations: Advertising
VIII - The Factual Allegations: Suppositions
IX - Interview with the Complainant: Attorney Vanessa Lopez Aguilera
X - Who has Recommended My Services and what I Recommend
XI - The Charges
XII - The Response Filed

If you would like to contribute any information about this matter or participate in the Response then please contact me.

1] IC 33-24-1-2 Jurisdiction
     Sec. 2. (a) The supreme court has jurisdiction in appeals coextensive with the state and has jurisdiction as provided by the Constitution of the State of Indiana.
    (b) The supreme court has exclusive jurisdiction to:
        (1) admit attorneys to practice law in all courts of the state; and
        (2) issue restraining orders and injunctions in all cases involving the unauthorized practice of the law;
under rules and regulations as the supreme court may prescribe.
2] The willful disobedience of any lawfully entered court order of which the offender had notice is indirect contempt. Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct. App. 2010); see also Ind. Code § 34-37-3-1. see also Deel v. Deel, 909 N.E.2d 1028, 1032 (Ind. Ct. App. 2009). “The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated.” Id. (quotation omitted). “A party may not be held in contempt for failing to comply with an ambiguous or indefinite order . . . [o]therwise, a party could be held in contempt for obeying an ambiguous order in good faith.” Id. (quotations omitted).

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