Wednesday, June 25, 2014

Engaging in the Unauthorized Practice of Law in Indiana - Part IX Interview with the Complainant: Attorney Vanessa Lopez Aguilera

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

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.

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.

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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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