It has been awhile since I have posted an installment in this series but apparently by raising the ire of enough losing attorneys I have gained more credibility and requests for assistance. I am now getting back to a level of cases that affords me some leisure time again.
In propounding support for his effort to have the Indiana Supreme Court order me to stop assisting parents engaged in high conflict child custody battles mitigate their conflict Michael Witte has claimed that the public needs to be protected from my advice. Particularly he has claimed, “The public interest requires that Showalter be enjoined from the unauthorized practice of law.” Such a claim sounds innocuous enough and I would gladly go along with it. However, it is Witte's implication of what constitutes UPL – acting as a watchdog over attorney's actions – that will have a chilling effect on child advocates who wish to reduce parental hostilities. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
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.
Witte's claim that the “public interest” – which he purportedly represents – “requires” that I be enjoined from further reducing parental hostilities and neglect of children implicitly states that those who feel that my assistance is of benefit are in error. Those who declare their support of a service through a recommendation are said to endorse that service. A common marketing strategy is the use of an endorsement. This occurs in politics through other politicians or activists, products through the use of celebrities and sports stars, and academia through peer review. If Witte is correct in his assertion then let's see who is incorrect – in his view.
Previously in this series I have mentioned the Craig Scarberry case. Witte alleges specifically that it was my input to the attorney representing Mr. Scarberry that is illustrative of from what the public needs protected. That attorney, Ken Falk, who is the legal director of the American Civil Liberties Union of Indiana, considered my recommendations, followed those and when success was achieved in the Indiana Court of Appeals told Mr. Scarberry “Don't thank me, thank Mr. Showalter because it was his ideas that got your children returned.” Subsequently while in Mr. Scarberry’s care his daughter was again able to receive necessary medical treatments that the mother refused to allow while she had custody. Mr Witte considers that a negative result.
Bryan Ciyou is a well known and respected family law attorney who specializes in appeals. A client of his was embroiled in a hostile relationship with the former spouse. Much of the hostility was the result of the client’s personality issues and the other parent’s refusal to communicate. This client is now enjoying a better relationship with the children, has a more productive life, has nearly eliminated any depression indications, and is becoming more financially secure. Additionally, the litigation has nearly come to an end although we expect some new attack to come at anytime. The parties’ children now appear less anxious and are feeling fewer effects of high conflict parenting. Mr Witte considers these negative results.
Recently I attended Justice Steven David's In-Service program and was speaking with Judge Jeffrey Edens of the Boone Circuit Court. Edens replaced Judge David when he went to the Supreme Court. Interestingly, Judge Edens represented my former wife during our dissolution proceedings. We were less than friendly with each other at that time as I felt his actions exceeded the ethical bounds by which one should adhere to when advocating for a client in a child custody proceeding. As we were discussing some of the points made during the In-Service I made reference to my continued frustration that so many of these college educated professionals don’t appear to understand what is going on with these children from the child’s perspective yet I, who didn’t attend college, is capable of doing so. Edens acknowledged that I provide valuable input on public policy and am a benefit to children. Mr Witte considers that a negative result.
Judge Edens also said not to think any less of myself because I don’t have any college training and that I am much more intelligent than many who do have college degrees. I do assure you that I have always thought highly of myself and won’t think any less of myself because I lack some worthless piece of paper.
When Craig Scarberry was desperately seeking assistance on regaining the relationship with his children after Magistrate George Pancol ruled Scarberry unfit to parent because he was “agnostic” Scarberry contacted the Office of the Governor, Mitch Daniels. While no one in the executive or legislative branch could intervene on his behalf to reverse such a miscarriage of justice Scarberry was given the name of someone to contact who could help in child custody matters. The person recommended to him by the governor’s office was yours truly. Mr. Witte considers the governor or his staff to not be intelligent enough to recommend someone of competence to Indiana citizens whose children are being harmed as a result of inappropriate or, as in Scarberry’s case, illegal court orders.
CONCLUSION
Mr. Witte has not produced one Indiana resident who has alleged that he or she has been harmed by the assistance provided by me. No one has come forward to allege that he or she needs protected from the information I offer or questions I ask. Quite to the contrary parents and children throughout Indiana thank me for providing the insights, guidance, and motivation that have improved their lives and relationships. The recommendations that I have made to Indiana legislators or judicial officers have become part of the Indiana Code, the Indiana Parenting Time Guidelines, and the Indiana Child Support Guidelines. Additionally, schools and other institutions in direct contact with children have adopted my recommendations. Children throughout Indiana are experiencing better outcomes because of my actions.
That is precisely what I want. I don’t want awards, I turn down offers of acknowledgement, and I don’t want the State or anyone else providing emolument for my public policy input. The only reward I seek is the personal satisfaction of knowing that the effects of high conflict parenting and divorce are being mitigated for the children.
That also is precisely what Mr. Witte doesn’t want. He wants to see litigation continue, parents bitter and hostile towards each other, parents emotionally and financially devastated, and ultimately for children to suffer the adverse consequences which result in more legal proceedings and presumptively the use of attorneys. Mr. Witte is all about the money -- money going to attorneys. The only threat I pose is lose of revenue for attorneys. It is Witte from whom the residents of the state of Indiana need protected.
UPDATE
I have received a settlement proposal this week from the Disciplinary Commission. It is currently being reviewed by interested parties. I will do a post about it soon.
Upcoming segments in this series will include
XII - The Response Filed
If you would like to also 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. 
Wednesday, August 27, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part XI Who has recommended me and my Conclusions
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 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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.
Thursday, May 29, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part V The Factual Allegations: Attorney Jennifer Bonesteel
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 18-24 Jennifer Bonesteel
18] 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. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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 the next few postings I respond to the particular factual allegations as put forth by Mr. Witte in his Verified Petition. Today I continue with the section related to Jennifer Bonesteel an Indianapolis family law attorney. Each numbered paragraph corresponds directly to the allegations in the Verified Petition.
19] 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.
20] I see nothing here alleging an utterance in any form by myself, the person named in the petition as the defendant, indicating that I claimed to be an attorney or engaged in the practice of law. It is neither within my control nor my responsibility to control the cognitive perceptions of other people.
21] I have only met with Bonesteel once.
22] I never recall hearing anyone say I attended law school. Knowledge of one attending law school, while it may be incorrect, does not rationally equate to being admitted to the practice of law in Indiana. A trained lawyer should not make such a presumption without proper evidence.
23] By Witte's own uncertain admission I stated that I was NOT an attorney or “words to that effect.” I am uncertain as to the appropriate method to dissuade someone from the false belief that I am something other than by saying I am NOT that something.
24] Yes, I may have asked Bonesteel a simple question about her availability or willingness to accept Mr. Scarberry as a client, although I do not recall doing so and thus can neither confirm nor deny this statement.
In short what Witte has alleged in this section relating to Jennifer Bonesteel is that some mystery client hired her to advocate his or her position in court and that I had been “assisting” this parent. Further, that I said something to the effect of “I am not an attorney” to Bonesteel which Witte interprets as me claiming to be an attorney. As you read his Petition you will see that Mr. Witte's allegations surrounding Jennifer Bonesteel center on his claim of her unfounded and directly contradicted belief that I was an attorney. The email that I have from Bonesteel responsive to these allegations clearly states in her words that “[Mr. Showalter] did not try to impose upon my judgment and on at least one occasion [Mr. Showalter] refused to give [client] legal advice.” You can try to figure out the logical processes of Witte's brain to make the connection there but I caution you to not dedicate too much effort or become obsessed with trying to solve that conundrum.
Just as Witte alleged in regards to Craig Scarberry he now alleges that this phantom client was represented by an attorney also – this time Bonesteel. Like ACLU attorney Ken Falk, Jennifer Bonesteel's competence and integrity have been impugned by Witte through implication. This is because the purpose of a requirement for specific legal training, the Bar exam, and a law license is to protect the public from the potential affects of lay opinion about matters of such vital legal interest such as the custody of children or potential incarceration. Witte, in effect, is alleging that thus far Falk and Bonesteel either lack the competence or integrity to protect their clients' interests from my inquisitiveness about their legal strategies. The count for parents that I am assisting with Child Custody Life Coaching who are represented by attorneys is now two for two.
Upcoming segments in this series will include
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.
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.
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 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. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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 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.
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.
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.
