Tuesday, May 27, 2014

Engaging in the Unauthorized Practice of Law in Indiana - Part IV The Factual Allegations: ACLU Ken Falk

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.

Response to Petition to Enjoin the Unauthorized Practice of Law

State of Indiana
Stuart Showalter

In charging an act of wrongdoing it is a principle of law that the alleged facts support the conclusion. In common parlance this is the reasons for the charge. It may be more formally known as the factual basis or in criminal law – probable cause. In this an the next few postings I respond to the particular factual allegations as put forth by Mr. Witte in his Verified Petition. Today I begin with the section related to Ken Falk, Legal Director of the American Civil Liberties Union of Indiana. Each numbered paragraph corresponds directly to the allegations in the Verified Petition.

Paragraphs 13-17 Ken Falk

13] It is true that while Craig Scarberry was seeking out assistance to appeal a child custody order I did assist him.

14] It is true that I include a statement on my website that I assisted Craig Scarberry while he was going through an appeal of a custody order.

15] This is also a true statement. I was contacted by Scarberry after he was referred to me by the Office of the Governor of Indiana. I provided assistance by directing Mr. Scarberry to the Indiana Supreme Court's self-service website, providing a copy of the Indiana Rules of Appellate Procedure to him and persuading Ken Falk to represent Mr. Scarberry in the appeal. An additional portion of my assistance to Scarberry included trying to calm his anxiety and comfort him in letting him know that the system has safeguards in place but he must patiently allow those to function. At Falk's request I did meet with him, an intern of his, and Mr. Scarberry at the ACLU of Indiana offices. At the conclusion of our meeting Mr. Falk asked if either Craig or I had any thoughts or questions. I asked Falk if he had considered seeking a Stay pending the outcome of the appeal. He indicated that he had not. I expressed that I thought it would be appropriate because permanence and stability is preferred in child custody placement and being that the order being appealed said that Mr. Scarberry lost custody of his children because he chose to be agnostic it was clear that it would be reversed on constitutional grounds. Here is what I wrote on the subject in my 11 March 2011 blog posting:
Upon reviewing the Order I felt that this case clearly justified the issuance of a Stay pending a ruling by the panel of the Court of Appeals. My basis for this was that it is policy of the State of Indiana to provide permanence and stability in custody matters related to children. Since it was likely that the lower court judgment would be reversed and the children returned to the previous Shared Parenting arrangement I felt that it was in the best interest of the children to return them to that immediately.

I wrote a brief on the matter and submitted it to Ken Falk, Executive Director of the American Civil Liberties Union of Indiana, for him to do with as he pleased. Falk is the lead counsel on the Scarberry Appeal.

Falk filed a Motion to Stay with the Court of Appeals. Porcaro did not object or file any response to that motion. The Court of Appeals granted the Stay on 11 February 2011. A Stay is an order that in effect says that the order being appealed in a way doesn't exist and the parties should proceed as though it was never issued.

16] It is true that I not only typed/drafted a document but that it contained my original writing. However, Mr Witte's presumption as to my state of mind when writing it or transmitting it to Attorney Falk is incorrect. As I told Ken, “I wrote a brief that I will send to you and you can look at it, ignore it, or do whatever you want to with it.” I disagree that it is a legal document unless it is used in a legal proceeding or as precedent to a potential proceeding such as writing a contract.

17] These statements are true in their entirety. I am aware of the prohibition and did not write that document on behalf of Scarberry. I did not use the document but created it for my enjoyment and for Falk to do with as he pleased. I also did not draft substantive legal documents for Scarberry. While these statements may appear to convey the idea or imply that I had prepared the document on Scarberry's behalf the truth is that I prepared it for my own enjoyment and forwarded it to Falk for his consideration if he so chose.

In short what Witte has alleged in this section relating to Ken Falk while representing Craig Scarberry on appeal is that I helped secure that representation, that I put forth the idea to Falk about seeking a stay – which was granted – and that I wrote a brief supporting the petition for a stay and submitted to Falk to do with as he pleased. Then I helped Craig to continue to be a parent while thinking of the long-term parent-child relationships regardless of what is going on in the court's.

As Scarberry sees it, “Without Stuart's reassurance, guidance, and motivation I don't think I would be able to continue through Christine's constant litigation and still be an effective parent to my children.” When he called Ken Falk to thank him for getting his children back Falk told Scarberry to thank Stuart because it was he who broached the idea of a stay.

Keeping in mind that the Indiana Supreme Court has yet to choose to define the practice of law in its rules we are left to determine this on our own based upon the reasonable person standard. Thus, it becomes would a reasonable person conclude that asking a lawyer to represent someone, asking the lawyer if he had considered a particular type of filing, writing down your thoughts about the case and giving them to the lawyer, and not getting paid for any of it would constitute engaging in the practice of an attorney for which lay people should be barred. Finally, that those activities as applied to Mr Scarberry's case created a harm which requires direct governmental intervention to prohibit.

Upcoming segments in this series will include
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 me 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.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.


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