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 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
State of Indiana
v.
Stuart Showalter
When public agencies, resources, and monies are spent in enforcement actions we hold as a society that they should serve the public good. They should not however be used to vilify, harass, or impede upon the liberties of another individual. Civil courts and civil causes of actions are available remedies for people who feel they have a legitimate grievance with another individual. This is not to say that an individual cannot be the target of an enforcement action. Individuals are primarily the targets of public enforcement actions but public enforcement is to be on behalf of the people. In this case Mr. Witte is to be acting as relator for the public rather than surreptitiously on behalf of attorney Vanessa Lopez Aguilera. Lopez-Aguilera has been disingenuous in offers to settle a child custody action in which she represents a mother who abandoned the children to strangers, refuses to participate in parenting time, and is primarily concerned with financial matters. She has also alleged criminal unauthorized practice of law. So, I wanted to ask her why she has chosen to engage Mr Witte into her personal vendetta and why she feels so intimidated by me. I posed some questions to Ms. Aguilera and provide her responses as follows.
I started by telling her of my ongoing effort to inform and assist parents in obtaining competent family law counsel and a series of articles about family law attorneys and particularly about reducing parental conflict. I thanked her for providing her insight into child custody matters and entertaining my questions. I asked about her thoughts on the best way to resolve child custody disputes but got no answer as to a “best” method although protracted litigation appears to be favoured by her. Likewise, she provided no strategies to mitigate conflict among parents. As for her preference of mitigating conflict or engaging parents in an intense child custody battle she didn't have an answer although her actions seem to speak toward a preference for the latter.
An interesting revelation was when asked about the behaviours or qualities that she believes a good parent reflects, she had no answer. This may be because she is not exposed to parents who have positive parenting qualities as demonstrated by her client selection. I asked about one case in particular in which her client physically abused the child and then abandoned the child to people she claimed were not know to her well enough to make a character judgment. I asked for her to logically justify her claim that that parent should have primary custody of the child. Not surprising though she would not discuss this ongoing case.
I then asked about attorney traits and strategies. I described attorneys who use a strategy of attrition to try to win a case by doing things like filing repetitive and numerous interrogatories along with other motions in an effort to increase a responsive parent's legal bills. I asked if she did that but she would not answer although her record clearly speaks for itself in this regard. As for what traits she believes defines a competent attorney her response was eerily similar to that of parental qualities – unresponsive.
Finally I asked for a brief statement that I would present as a direct quote here as to what she believe makes her an ethical family law attorney who serves the best interest of children. Not surprisingly she was also not responsive to this question.
In my discussions with my client, whose wife is represented by Lopez-Aguilera, and his attorney I expressed my parenting advice and thoughts about the judicial officer who will hear the case. Not surprisingly the court filings and responses by the client to Lopez-Aguilera have clearly intimidated her and with good reason – my clients get favourable results from the courts. While my clients, under my tutelage and with the assistance of legal counsel, make good decisions and file competent and effective pleadings with the courts Lopez-Aguilera takes this as the unauthorized practice of law.
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. Just as with all clients of mine complained of and the one upon which Lopez-Aguilera bases her spurious claim, my clients have the assistance of legal counsel. Consistent with the opinion by the ABA House of Delegates on Undisclosed Legal Assistance to Pro Se Litigants “A lawyer may provide legal assistance to litigants appearing before tribunals 'pro se' and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.[en1] This does not, directly or by inference, mean that non-lawyers assisting a pro se client through the turmoil of a legal proceeding are engaging in the unauthorized practice of law as Lopez-Aguilera and Witte believe and propound to the Indiana Supreme Court.
Thus, what Lopez-Aguilera has sought to accomplish – protracted litigation amongst combative parents – by her false allegations is not consistent with the ABA's opinion nor the subjective UPL standards. Although I believe that it conflicts with the ABA opinion and the relevant rule[en2] in the Indiana Rules of Professional Conduct Lopez-Aguilera did obtain a court order for my client to disclose the name and nature of the attorney and assistance being provided to him. I think it would be technically valid and fun to ask for it to be certified for interlocutory appeal but, since her client has failed miserably at being a parent and Lopez-Aguilera is nothing more than a boiler-plate attorney it doesn't matter what she knows about my client.
Upcoming segments in this series will include
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.
Notes
1] This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through February 2007. The laws, court rules, regulations, rules of professional conduct and opinions promulgated in individual jurisdictions are controlling.
2] Indiana Rule 1.2(C) A lawyer may limit the scope and objectives of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Wednesday, June 25, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part IX Interview with the Complainant: Attorney Vanessa Lopez Aguilera
Monday, June 16, 2014
Indiana Court of Appeals Issues Published Opinion on When the Right to Counsel Applies in Child Support Contempt Hearings
At the outset I present a few words from Brian Moore; 2015 Indiana Child Support Guidelines review scheduled for public comment * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
“Maybe if society has to start paying for attorneys for some of the parents who have been driven into poverty by relentless divorce litigation, people will start to see the financial devastation that is wrought by divorce and that lawyers are the only winners.”
The right to counsel in a judicial proceeding when one's liberty is in jeopardy is a fundamental right embodied in the United States[en1] and Indiana Constitutions. Indiana has held that where the possibility exist that a defendant in a civil contempt proceeding for child support enforcement faces incarceration that defendant has to be informed of the right to counsel prior to commencement of the proceedings.[en2] The question facing the Indiana Court of Appeals was what constitutes the possibility of incarceration?
In the instant case Brian Moore was brought before the court on a petition by his former wife, Kristy Moore, seeking 30 days incarceration for failure to pay child support. Brian filed a motion seeking appointment of pauper counsel which was denied by Marion Superior Court Judge Robert Altice. Altice explained that he would not be facing incarceration that day but instead, if found in contempt, a status hearing would later be held and the issue of appointed counsel would be revisited then. Mr. Moore was found to be in contempt following the proceeding in which he was compelled to participate and was without the assistance of counsel. The position of Altice was that since he had taken the possibility of incarceration that day off the table that Brian was not entitled to pauper counsel. Brian's position was that because the evidence gathered that day could be used as a basis for his incarceration at a later date that he was thus entitled to the assistance of pauper counsel. This appeal ensued.
In his Appellant's Brief Brian raised two issues, the first being: “Whether the trial court erred when it did not advise Father of his right to counsel at the contempt hearing or appoint counsel for him.” The second issue he raised was “Whether the Petitioner presented sufficient evidence to support the contempt finding.”
The appellate panel restated the issues writing: “Brian raises two issues. We address the dispositive issue, which we restate as whether the trial court improperly denied his request for the appointment of counsel.” The Court noted, “Because of our resolution of the counsel issue, we need not address Brian’s challenge to the sufficiency of the evidence.” A prior panel has ruled that the underlying support order was without merit and vacated it.[en3]
As for the denial of appointment of pauper counsel Brian propounded the following argument in his brief:
In denying Father's motion the court stated “we don't appoint pauper counsel on civil matters” Father contends that the court erred as a matter of law. In civil contempt proceedings if an alleged contemnor cannot afford an attorney the court must appoint one to represent him. In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App. 1987). In the civil matter of Lassiter v Department of Social Services, 452 U.S. 18 (1981), the United States Supreme Court held that "an indigent litigant has a right to appointment of counsel . . . when, if he loses, he may be deprived of physical liberty." The Indiana Court of Appeals held “that where the possibility exists that an indigent defendant may be incarcerated for contempt for failure to pay child support he or she has a right to appointed counsel and to be informed of that right prior to commencement of the contempt hearing.” In re Marriage of Stariha, 509 N.E.2d 1117, at 1121 (Ind. App. 1987).
The Court did not inform father of his right to counsel but instead said that it does not appoint counsel in civil matters and that “I'm ready to proceed, and I'm going to proceed.” In this instance Father's liberty was in jeopardy on the day of the hearing based upon the careful presentation of evidence, defenses or objections, and other procedures of court more aptly navigated by a trained professional – competent legal counsel.
The Court premised the denial on the position that he would not be subject to execution of the sentence without further hearing at which time the Court expressed its view that “it's probably appropriate that I have somebody sit with you.” Tr. p. 56 The future hearing was termed a “compliance hearing” Tr. p. 54 The extent of the hearing will be to determine if father has complied with the court's 06 June 2013 order.
The court committed a fundamental error when it held a hearing on Mother's Motion for Rule to Show Cause for Father’s alleged willful failure to pay child support following denial of his motion for pauper counsel. Mother had requested that Father be incarcerated for failure to comply with the court's child support payment order. At the conclusion of the hearing Father was found to be in contempt and a sentence of incarceration was entered, although suspended. A future compliance hearing date was set.
Father contends that although he was not incarcerated on the hearing day that nonetheless, consistent with Stariha, he had the right to counsel because the content of the proceedings, including his own statements may lead to his incarceration. The future supplemental proceeding, a compliance hearing, is not for the purpose of determining the basis for contempt – his ability to pay and whether such failure to pay was willful – but to determine only if the payments have been made as ordered between the dates of the two hearings in question.
Thus it was the 13 September 2013 hearing which is the basis of Father's potential loss of liberty and which, consistent with Lassiter, triggered his right to counsel. The evidence admitted for the finding of contempt against Father had been made at the 13 September hearing. This finding resulted in a sentence of 30 days in jail, suspended. Therefore, it was the 13 September 2013 hearing at which the facts were elicited that would determine whether Father had the ability to comply with the Order and if such failure to do so was willful.
Father contends that the Court erred as a matter of law in not informing him of his right to counsel before proceeding with the 13 September 2013 hearing, that he had a right to counsel at that hearing, and that the court did not find by clear and convincing evidence that Father had willfully violated the court's order. For these reasons Father contends that the record of the 13 September 2013 hearing should be stricken, that the matter be remanded to the trial court to conduct a new hearing, and at such hearing that Father have the opportunity to obtain counsel and have counsel present or the Court appoint counsel for him if the complainant still seeks imposition of a term of incarceration.
The Court of Appeals was quite succinct in it's ruling, the analysis portion of his argument which I provide here in its entirety:
Brian argues that the trial court improperly denied his request for counsel prior to sentencing him to thirty days in jail, all of which were suspended, for his failure to pay child support pursuant to the June 2013 order. We have held “that where the possibility exists that an indigent defendant may be incarcerated for contempt for failure to pay child support he or she has a right to appointed counsel and to be informed of that right prior to commencement of the contempt hearing.” In re Marriage of Stariha, 509 N.E.2d 1117, 1121 (Ind. Ct. App. 1987). This is so regardless of whether a private person or the State initiates the contempt proceedings. Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct. App. 2005).
Here, there is a clear possibility that Brian is indigent. Furthermore, even though the trial court suspended the sentence and indicated it would reconsider the issue of appointing counsel prior to the compliance hearing, Brian clearly risked the possibility of losing his physical liberty as a result of the trial court’s contempt finding. Thus, if indigent, Brian was entitled to have counsel represent him at that hearing, not just at the subsequent compliance hearing. [emphasis added]
The panel concluded:
“Brian has made a prima facie showing that the trial court erred by denying his request for counsel. We reverse and remand for the trial court to determine if Brian is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.
Reversed and remanded.
This case provides some significant ramifications. What I find most important is that Brian Moore did not acquiesce two erroneous decisions. When faced with imputed income that had no evidentiary basis he appealed, pro se, and won. Subsequently, when he was held in contempt for not complying with the erroneous order and without having had the assistance of counsel, despite his request, he again appealed . . . and won -- in a published opinion! Brian did what so many who complain about the courts do not – he availed himself of the due process rights granted to him under the Indiana Constitution. “This appeal was a huge amount of work and expense for me; as a self-employed person, time is money. I am glad that my work paid off, and I trust the Court of Appeals decision will help other people facing similar circumstances,” said Mr. Moore.
The reason that this opinion was published is because of the legal standard that it has now established in Indiana when it comes to the appointment of pauper counsel during child support payment contempt proceedings. That is, a court cannot escape appointing counsel be merely stating the incarceration is not an option at that moment when, at a subsequent hearing, the same evidence admitted at the instant proceeding may be used to deny a defendant of his physical liberty. If Kristy Moore does not seek transfer to the Indiana Supreme Court by 14 July 2014 then, consistent with the ruling in Moore v Moore (Ind. Ct. App. 2014) if a defendant “risk[s] the possibility of losing his physical liberty as a result of the trial court’s contempt finding . . . if indigent” he is “entitled to have counsel represent him at that hearing.”
At the outset here Brian mentioned the costs associated with protracted litigation and the expense that society will have to shoulder. This case clearly exemplifies the waste of time and resources that a vindictive and alienating parent can inflict especially when assisted by unscrupulous counsel. Kristy Moore and her attorney Jonathan Deenik have done just that. The June 2013 child support payment order which was the basis of the contempt hearing was the result of an erroneous support calculation after Kristy sought a modification. It was Deenik who submitted proposed findings and conclusions indicating that Brian Moore was capable of earning $50,000 per year which is the amount that Judge Altice imputed to Brian. However, in the 09 May 2014 decision on the appeal of that order another panel of the Indiana Court of Appeals stated:
The trial court determined that Father was capable of earning $50,000 per year. This finding is not supported by the evidence and is clearly erroneous. When asked by Mother’s counsel if he was capable of earning $50,000 a year, Father testified that he had never made that much in his current field, which he had been in throughout the marriage and thereafter. At the time of dissolution, the parties agreed that Father was earning about $22,200 per year. Nothing in the record indicates that Father’s income potential improved, let alone more than doubled, since the dissolution.
On remand, the trial court is directed to reconsider Father’s weekly income and child support obligation.
Thus, if Brian's income at the time of dissolution is used to calculate support then he would likely have a negative support obligation and not be required to pay anything to Kristy. Because of Kristy's desire to sever the relationship between Brian and their children these parents spent three days in court, both have expended considerable resources fighting and the State of Indiana may have to pay Brian's cost of the appeal and pay for an attorney to represent him at any subsequent contempt hearing.
Often times parents who go through this end up financially, physically, and spiritually drained. They lack any resources to go forth and combat these injustices such as those with which Brian Moore was saddled. But Brian did not give in or give up. He availed himself of resources in the community and, with coaching, those within himself. As he said, “I could not have done this without the help of Stuart Showalter. His assistance in teaching me how to perfect an appeal while keeping me focus and goal oriented was invaluable. I am grateful that a highly respected Indiana attorney who specializes in appeals recommended Stuart to me.” I again feel justified in restating what I have often declared – the court system works for those who have the patience and fortitude to fully use it. But even with Brian's dual victories I can say there were no winners here.
The ultimate victims of Kristy's agenda are the two Moore children and taxpayers who are footing the bill both psychologically and financially to support her vendetta.
Notes
1] Freedom “from bodily restraint” lies “at the core of the liberty interest protected by the Due Process Clause.” Foucha v. Louisiana, 504 U. S. 71, 80. See also - Turner v. Rogers, 131 S.Ct. 2507 (2011); Mathews v. Eldridge, 424 U.S. 319 (1976)
2] Marriage of Stariha, 509 N.E.2d 1117, at 1121 (Ind. App. 1987).
3] Moore v Moore 09 May 2014
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Wednesday, June 11, 2014
28 Year Protective Order Term Vacated by Indiana Court of Appeals on Rehearing
I previously wrote about a 28 Year Protective Order Term issued against an Indiana woman which was upheld on appeal. The basis that the panel relied upon was that the woman had agreed to the extension of the PO. Typically a PO is extended by two years[en1] which would be a likely assumption. In agreeing to the extension the woman complained on appeal that she had not agreed to a 28 year term.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
As I assist parents through handling the process of child custody battles and litigation I often hear complaints about what the court did to them and how it isn't fair. I will again take this opportunity to restate that “fair” is a place with stinky animals, greasy food, and carnival rides. You don't find fair in a courtroom. Rather, the courts are intended as a due process forum. Due process is an opportunity to be heard.[en2] Being heard entails much more than simply saying your piece - presenting your story.
The traps that lawyers and, more often, self-represented litigants succumb to numerous and foremost is the opportunity to object. Failure to object constitutes waiver of the issue.[en3] Prior to the hearing is a request for special findings and conclusions of law[en4] which requires a judicial officer to state the specific evidence relied upon and reasons for the judgment. Special Findings place a higher standard upon the Court of Appeals to uphold a trial court when review has been sought.[en5]
Appeal is a method of challenging the judgment of the trial court by arguing that the trial court was in error or applied an improper standard in coming to its conclusion. Appeals must be taken within 30 days of the judgment being appealed or the issue is waived.[en6] If the decision of the appellate panel is not satisfactory to the Appellant then a rehearing or transfer may be sought by the Appellant. Rehearing is asking the Court of Appeals to reconsider the issue while transfer is asking the Indiana Supreme Court to consider the matter. Both must be filed within 30 days of the decision.[en7]
In this case AN properly sought rehearing which was granted for the limited purpose of examining the prior decision of this panel which upheld the 28 year PO term. The panel this time concluded that the 28 year term order was improperly issued based upon the need for specific findings that the women posed a threat of future violence. The panel relied upon a prior decision which stated;
For example, at the state level, violation of the trial court’s protective order is punishable by confinement in jail, prison, and/or a fine. Furthermore, after the trial court has issued a protective order, it is a federal offense for a respondent to purchase, receive, or possess a firearm if the protected person is his current or former spouse, a current or former significant other, or a person with whom the respondent has a child. Thus, an improperly granted protective order may pose a considerable threat to the respondent’s liberty. [en8]
The matter is remanded to the trial court “to determine a reasonable extension of [the] protective order.” Thus, by availing herself of due process offered by the courts this women won't be lamenting and complaining until the year 2040 that she is under the burden of “an unlawful protective order.” Others should take heed.
notes
[1] see Indiana Code § 34-26-5-9(e)
[2] “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
[3] We decline to address an issue for the first time on appeal upon which the trial court did not rule and where the issue was not raised below. See GKC Ind. Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (“As a general rule, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court.”).
In the absence of a specific and timely objection, a claim regarding the admission of evidence is not available on appeal unless it constituted fundamental error. Troxell v. State, 778 N.E.2d 811 (Ind. 2002).
In order to preserve for review a claim that the trial court erroneously admitted evidence, a specific and timely objection must be made. Tate v. State, 835 N.E.2d 499 (Ind. Ct. App. 2005), trans. denied.
The failure to object at trial waives any claim of error and allows otherwise inadmissible hearsay evidence to be considered for substantive purposes. Johnson v. State, 734 N.E.2d 530, 532 (Ind. 2000).
[4] See Indiana Rules of Trial Procedure, Rule 52(A)
[5] The trial court in this case entered findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). Accordingly, our standard of review is two-tiered: first, we determine whether the evidence supports the findings and, second, whether the findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213 (Ind. 2012). We view the evidence in the light most favorable to the judgment and defer to those findings if they are supported by the evidence or any legitimate inferences flowing therefrom. Id. Legal conclusions, on the other hand, are reviewed de novo. Id
[6] The Indiana Rules of Appellate Procedure provide that a party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty days after entry of a final judgment. In re D.L., 952 N.E.2d 209, 211 (Ind. Ct. App. 2011), trans. denied (citing App. R. 9(A)(1)). “The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal.” Bohlander v. Bohlander, 875 N.E.2d 299, 301 (Ind. Ct. App. 2007) (citation omitted), trans. denied
[7] see Indiana Rules of Appellate Procedure (2014) Rule 54(B); Rule 57(C)
[8] Barger v, Barger, 887 N.E.2d 990, 993-94 (Ind. Ct. App. 2008)
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Monday, June 9, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part VIII The Factual Allegations: Suppositions or Does evidence demonstrate that G. Michael Witte sexually molests children?
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 Paragraphs 31 - 32 The Suppositions
31] There is not enough information in this paragraph for me to either deny or confirm. An Indiana resident has not been identified in this paragraph. All of the legal advice that I have given directly to an individual has been to Mr. Mogatobi Engatu of the Nigerian Ministry of Defense who needed help in transferring $30 million to a U.S. Banking institution for which I was to receive $9 million. I suggested that he not randomly contact people through email about this type of matter.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
State of Indiana
v.
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 and some upcoming postings I respond to the particular factual allegations as put forth by Mr. Witte in his Verified Petition. Today I conclude my commentary on the alleged facts with the two suppositions about directly providing lawyer services to Indiana residents. Each numbered paragraph corresponds directly to the allegations in the Verified Petition.
32] There is not enough information in this paragraph for me to either deny or confirm. An Indiana resident has not been identified in this paragraph. All of the legal documents that I have drafted directly for an individual have been for Mr. Mogatobi Engatu of the Nigerian Ministry of Defense who needed help in transferring $30 million to a U.S. Banking institution for which I was to receive $9 million.
Witte's suppositions in this regard are to the extreme in being baseless and without merit. Witte lacks any semblance of logic or cogent reasoning in his connections between the factual allegations he makes and ultimately these alleged factual suppositions. In previous postings I wrote about how Witte has alleged that I provided legal opinion to three Indiana attorneys who represented life coaching clients of mine. Included in some of those were Witte's self contradicting statements and the contents of an email from one of the attorneys – which directly contradicts what Witte alleged – which was sent to me recently. Witte then makes the gargantuan leap from those attorney interaction to I have directly been advising Indiana residents on their family law matters and preparing their pleadings for them. As is typical with me I like to make analogies using real world scenarios which I will apply here.
So let's say that I happen to be in New Palestine riding past the home of Witte and his wife, Dawn, when I see the postal carrier deliver a magazine in a sealed black plastic bag to their home. To verify my suspicion of what was being deliver I do a dumpster diving investigation on trash day and sure enough I find the previous month's well worn issue of their favourite pornographic magazine. Additionally, I find discarded physical evidence of their copulation and photographs of children in their trash. Additionally during my travels about the area I had seen children enter their home. Based upon these factual circumstances it would be logical to assume that Michael and Dawn use a little pornography to stimulate their sexual encounters with each other and that they likely have children in their family or grandchildren visiting. I trust that you agree this is a rational assessment of the evidence I presented.
Now let me add some Witte logic to this scenario. Upon information and belief, G. Michael Witte has possessed child pornography and he should be enjoined from directly possessing child pornography. Upon information and belief, G. Michael Witte has engaged in Vicarious sexual gratification with persons under the age of 16 years and he should be enjoined from directly molesting children. I trust that you agree this is a irrational presumption as the factual allegations include only the few lawful elements of the fully inclusive list of elements of possessing child pornography and molesting children. Having consensual sexual relations between consenting adults in a home where children also reside does not mean that children are being sexually molested. Likewise having pornographic images of adults while concurrently having photos of children fully clothed does not equate to also possessing child pornography. But Witte doesn't make such distinctions. He believes that satisfying any of the elements of the broader scope of all necessary elements of a charge constitutes a violation of the charging offense requiring court intervention.
Such is just not the case. The residents of Indiana would certainly be better served by having officials who fully possess the necessary mental faculties in the position of making these allegations. Likewise when attorneys do engage in unethical practices like intentionally lying to a father to get him to violate a child custody order and disrupt the lives of children they should be reprimanded by Witte. But, that doesn't happen. Until such time as he is replaced we will have to make do with the logically encumbered brain of G. Michael Witte that allows intentional unethical actions by attorneys which harm children to continue.
Upcoming segments in this series will include
IX - Interview with the Complainant: Attorney Vanessa Lopez Aguilera
X - The Charges
XI - Who has recommended me and my Conclusions
XII - The Response Filed
If you would like to contribute any information about this matter or participate in the Response then please contact me.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Friday, June 6, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part VII The Factual Allegations: Advertising that I am an Attorney
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 Paragraphs 5 - 12 Advertising as an Attorney
5] True * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
State of Indiana
v.
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 and some upcoming postings I respond to the particular factual allegations as put forth by Mr. Witte in his Verified Petition. Today I move on to the vaguely veiled general accusations that I am engaging in the unauthorized practice of law which in this first part relates to advertising as an attorney. Each numbered paragraph corresponds directly to the allegations in the Verified Petition.
6] The link shown is to a page on my website. I have attached a copy of this page, as of 03 June 2014, hereto as Exhibit A.
7] This paragraph ends with “and be just a phone call away . . . .” What Witte omits by text and context is the remainder of the sentence “. . . even in the middle of the night, when your emotions or anxiety overwhelms you.” which relates to the purpose of providing emotional or spiritual support of life coaching. I have tightened the language on this page in an attempt to remove possible interpretation by readers that I may be acting in place of an attorney.
8] This paragraph is directed to attorneys who wish to direct me in assisting them and specifically contradicts Witte's allegations in ¶¶33-36.
9] Similar to ¶8 this paragraph is directed to parents represented by attorneys and is intended to convey the importance of the long-term parent-child relationship. While attorneys may speak in “legaleze” which their clients may not understand I either translate to layman's terms or let the attorney know that the client appears bewildered. This specifically contradicts Witte's allegations in ¶¶33-36.
10] This paragraph refers to a section of the website that was not placed under my “services” as it was far from complete, should have had privacy settings limiting it to “administrators” only and when complete will be directed primarily toward assisting attorneys not experienced with appeals or helping them or their clients find competent appellate counsel. The privacy settings on this page were changed on 15 May 2014 to remove this page from public view. The page Client Portal was also open to public viewing although it should have been accessible only to current clients and has been changed.
11] This paragraph contains a portion of the page referenced in paragraph 10. Specifically, it notes Mr. Showalter's “appellate team” which includes himself, a clerk that can assist with formatting, house counsel, and outside attorneys who specialize in appeals. This paragraph describes work to be done by attorneys or under the direction of attorneys and specifically contradicts Witte's allegations in ¶¶33-36.
12] This is an otiose statement as it does not support Witte's allegations in ¶¶33-36. I could just have easily said that I can perform most of the acts necessary to build a space shuttle – tightening screws, connecting wires, applying glue, welding, etc -- while leaving the most complex actions to those specifically trained for them.
In short what Witte has alleged in this section relating to advertising is that I am promoting that I am an attorney. Yet nowhere on my website do I indicate that I am an attorney. Quite to the contrary I specifically state on my client contract:
By signing this agreement, I, _______________________, acknowledge that I have been advised by and am aware that Stuart Showalter and his associates are not attorneys, mental health professionals, physicians, financial planners or securities dealers and are not providing specific advice as a substitute for that provided by those professionals unless those professionals specifically acknowledge their discipline.
Just as Witte alleged in regards to Jennifer Bonesteel and her phantom client, that when I say I am “not” something that I must be that, he makes the same logical fallacy here. His conclusions that I am engaged in the unauthorized practice of law by assisting parents to manage their lifestyle while going through a custody proceeding or helping them find an attorney is misplaced. Very few attorneys would agree that their practice is to try to find an attorney for clients who come to them for assistance. Using Witte logic it would be like a Wal-Mart greeter directing you to go to Target when you ask where something is located.
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 helping settle a person's anxiety, preparing them physically and mentally for court appearances, improving their parental behaviours, and helping to find legal counsel if needed would constitute engaging in the practice of an attorney for which lay people should be barred.
Upcoming segments in this series will include
VIII - The Factual Allegations: Suppositions
IX - Interview with the Complainant: Attorney Vanessa Lopez Aguilera
X - The Charges
XI - Who has recommended me and my Conclusions
XII - The Response Filed
If you would like to contribute any information about this matter or participate in the Response then please contact me.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
