Tuesday, September 23, 2014

Engaging in the Unauthorized Practice of Law in Indiana - Part XII The Response Filed

The is the twelfth but not final posting in this series. In formulating the issues that I would cover under this series I made one, now glaring, omission. That is, the resolution. In today’s posting I review my response to the State’s petition to bar me from performing certain activities related to child custody litigation.

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 presented to you some information about why the UPL complaint was filed against me and how Mr. Witte and his ilk use that 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. I now present my response to the Complaint.

Before presenting my responses to the enumerated statements and allegations in the Petition I included a Preliminary Statement in my response.

My response next addressed the issues in chronological order. Most I readily admitted to as they were factually correct statements. Some were logically deficient or selectively took matters out of context.
Paragraph 7 response states:
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.
Paragraph 12 response states;
This is an otiose statement as it states that “some” not “all” or anything else that implies the practice of law. 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. Similarly, attorneys who offer unbundled legal services allow clients to perform the rote actions related to litigation while leaving the complex legal actions such as motion writing or argument at hearings to the attorney.

Witte seems to think that I told attorney Jennifer Bonesteel that I was an attorney also assisting her client. Paragraph 23 response states;
By Witte's own uncertain admission I stated that I was NOT an attorney or “words to that effect.” I am uncertain as to other appropriate methods to dissuade someone from the false belief that I am something than by saying I am not that something.

The 19 September 2011 email that I have from Bonesteel responsive to these allegations and my limitations as a non-attorney clearly stated in her words “However, as [Mr. Showalter] did not try to impose upon my judgment and on at least one occasion [Mr. Showalter] refused to give [client] legal advice, I think he’s probably aware of those issues and discussed them with you as well.” Apparently Bonesteel is saying something different to Witte than what she wrote in her email from three years ago or Witte just doesn’t understand how to interpret her statements.

Most of Witte’s statements did not contain enough information to either confirm or deny the allegation nor did they state an Indiana resident. Paragraph 30 implies that I have knowledge of the thoughts between an attorney and client. To that I responded;
I have no knowledge of the extent or content of conversations between Sims and her client. Therefore, I can neither confirm nor deny the substance of this paragraph.

It may be semantics by Witte’s allegation to me “drafting” documents, I believe, is misplaced. My response to paragraph 32 is;
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. This paragraph is purely speculative. Further if “draft[ing]” legal documents constitutes the practice of law then newspaper editors who reprint syndicated material to their column width, type-style, and other attributes would be plagiarists.

My closing paragraph followed general denials of the allegations made relating to the unauthorized practice of law. My response at paragraph 36 states;
This first contradiction that emanates from Witte's charge in ¶36 is that in his 32 paragraphs of foundation not once did he allege any act of harm or potential harm based upon my incompetence to the general public. Rather, his foundation is based entirely upon the precept that attorneys are not competent enough to make their own informed decisions inclusive of my input whether it have a viable legal foundation. Thus, I deny this paragraph in its entirety as there has been no demonstration within the Petition that I have engaged in the unauthorized practice of law or that the public interest “requires” that I be enjoined from doing something that I am not doing. Further, that I will not become an attorney or provide specific legal advice directly to Indiana resident litigants as I would feel personally responsible for the outcomes of children based upon custody decisions by the court and I do not ever want to bear the burden of a harm inflicted upon a child by a parent to whom custody, care and control of the child was granted. Finally, that the outcome in the Scarberry case – the judgment being vacated and the children returned to the status quo expediently based upon my query – would not have been as expeditious had I not asked attorney Falk if he had considered filing a Motion to Stay.

Underlying the entire Petition and the purpose of the regulation of the UPL is the protection of the public. Witte has stated that it is in the public interest that I be enjoined from the unauthorized practice of law. Implicit in that is that I have harmed individuals cases or their relationships with their children. If such is happening then an immediate response would be warranted. I wouldn’t want Witte or the Disciplinary Commission of the Indiana Supreme Court to be given the responsibility of managing our 9-1-1 system. All of the allegations in the Petition relate to activities that occurred during 2010-2011.

I was approached by the Disciplinary Commission about resolving this matter through agreement. As I am an advocate of non-judicial resolution of disputes I welcomed the opportunity. I spoke with an attorney for the Commission and exchanged emails then versions of a proposed agreement revised multiple times. When the language represented what I wanted I went to the Indiana Judicial Center and signed it. The agreement is currently being reviewed by the Indiana Supreme Court.

Upcoming segments in this series will include
XIII - The Resolution

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