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.
To begin the second segment in this series is the complete text of the Indiana rule regarding the unauthorized practice of law. Rule 24 of the Indiana Rules of Court: Rules for Admission to the Bar and the Discipline of Attorneys provides the following; * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Rules Governing the Unauthorized Practice of Law
Original actions, under I.C. 33-24-1-2[fn1], to restrain or enjoin the unauthorized practice of law in this state may be brought in this court by the attorney general, the Indiana Supreme Court Disciplinary Commission, the Indiana State Bar Association or any duly authorized committee thereof, without leave of court, and by any duly organized local bar association by leave of court. The action against any person, firm, association or corporation, shall be brought by verified petition, in the name of the state of Indiana, on the relation of the authorized person or association or committee, and shall charge specifically the acts constituting the unauthorized practice. Within time allowed, a respondent may file a verified return showing any reason in law or fact why an injunction should not issue. No other pleading in behalf of a respondent will be entertained. All allegations of fact in the petition and return shall be specific and not by way of ultimate fact or conclusion. The return shall specifically deny or admit each allegation of fact in the petition, and it may allege new facts in mitigation or avoidance of the causes alleged in the petition.
The parties shall file an original and five [5] copies of all pleadings, including exhibits, plus an additional copy for each adverse party. If any exhibit shall be a matter of public record one [1] certified copy thereof shall be filed with the original petition or return. No pleading or exhibit thereto will be considered which has words or figures on both sides of the same sheet of paper.
No restraining order will issue without notice except upon the filing of an undertaking with conditions and surety to the approval of the court. Notice of the filing of the petition will be given and served upon any respondent as may be directed by the court, such notice to be accompanied by a copy of the petition. The clerk will mail a copy of any return to the relator.
The verified petition and return shall constitute the evidence upon which the issues are decided, unless the court shall deem it necessary to, and shall appoint, a commissioner, in which event such commissioner, who shall have full authority to subpoena witnesses and records, shall hear the evidence and report his findings of fact to the court.
A copy of any pertinent agreement, made by any recognized bar association concerning the unauthorized practice of law, may be attached to and made a part of any pleading and unless denied under oath shall be deemed to be a true copy without further proof of the execution thereof.
The costs and expenses incurred by such hearing shall be borne by the losing party. Briefs need not conform to requirements of Appellate Rules 43-48. Arguments will not be heard as of right. [emphasis added]
Interesting that the Indiana Bar Association may file a complaint on behalf of the State of Indiana against a person whom the bar feels may jeopardize their income by reducing harm against children. This would be like giving an auto manufacturer group the power to bring actions to enjoin the use of “unauthorized use of vehicles”. Can you imagine who or what would be targeted? Older vehicles, motorcycles, bicycles, buses, taxis, passenger trains, and anyone else that would provide modes of transportation that reduced or eliminated the need for every individual to purchase a recently manufactured car. This Petition amounts to the actions of a cartel seeking to protect its financial interest by targeting anyone who may assist others in extricating themselves from financially supporting this cartel.
If you are like me and any other person of common intelligence you are noticing that there is no description in the rule of what constitutes the unauthorized practice of law. Thus, it is entirely subjective at the whim of the person making the allegation.
Due process at a minimum requires notice. Notice to enjoin the unauthorized practice of law should first describe the practice of law but these rules do not. We can look to contempt of court as analogous to injunction and prohibition for an act contrary to general knowledge. To be found in indirect contempt of court one must have been provided an unambiguous order notifying him of what he shall do or is restrained from doing, the order must be lawful, and he must have willfully violated the order[fn2].
This is a fundamental element of American jurisprudence - being informed of the expectations to which one is to comply. In the case of the unauthorized practice of law in Indiana neither the Indiana General Assembly nor the Indiana Supreme Court has first chosen to provide residents of the state subject to the Court's jurisdiction a definition of what acts comprise that.
This is intentional though so that the cartel can use the UPL allegation as a means to attempt to intimidate those who would threaten their financial viability. At the helm is the morally defunct G. Michael Witte who would rather see children suffer through years of parental conflict than an attorney miss a billable hour.
Upcoming segments in this series will include
III - A Preliminary Statement
IV - The Factual Allegations: ACLU Ken Falk
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 My Services 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] IC 33-24-1-2 Jurisdiction
Sec. 2. (a) The supreme court has jurisdiction in appeals coextensive with the state and has jurisdiction as provided by the Constitution of the State of Indiana.
(b) The supreme court has exclusive jurisdiction to:
(1) admit attorneys to practice law in all courts of the state; and
(2) issue restraining orders and injunctions in all cases involving the unauthorized practice of the law;
under rules and regulations as the supreme court may prescribe.
2] The willful disobedience of any lawfully entered court order of which the offender had notice is indirect contempt. Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct. App. 2010); see also Ind. Code § 34-37-3-1. see also Deel v. Deel, 909 N.E.2d 1028, 1032 (Ind. Ct. App. 2009). “The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated.” Id. (quotation omitted). “A party may not be held in contempt for failing to comply with an ambiguous or indefinite order . . . [o]therwise, a party could be held in contempt for obeying an ambiguous order in good faith.” Id. (quotations omitted).
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, May 21, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part II The Court Rules
Monday, May 19, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part I
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 amicable and efficiently resolve their child custody disputes consistent with the policies of the State of Indiana.
Although not specifically charged with doing so I provided legal advice to my son. Therin will be attending Indiana University in Bloomington, Indiana beginning the Fall semester of 2014. His objective is to become an entertainment contract attorney. I recently spoke to him about his upcoming college experience, as we often do, and his high school graduation. Particularly I broached the matter of parties and alcohol consumption. I specifically advised him to not consume alcohol until he is age 21 and more generally to not be in attendance at parties where alcohol is being openly served to or consumed by minors as this could cause legal problems for him. A resilient factor after an immediate legal proceedings that may be disposed of in his favour is that admittance to the practice of law in Indiana is subject to a “moral” component. That investigation is not limited solely to convictions but may include circumstances surrounding a case disposed of in his favour. I know, you've got to be thinking if alcohol offenses were a bar to being a lawyer . . .
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Yes I “provided legal advice” to my son. In his complaint against me Mr. Witte alleges that I “provided legal advice and services to Indiana residents” but, ha ha, my son won't be an Indiana resident until July 2014!
So hold on. It is going to be a fun ride filled with documents, audio recordings and plenty of refuted unfounded allegations by Mr. Witte.
Upcoming segments in this series will include
II - The Court Rules
III - A Preliminary Statement
IV - The Factual Allegations: ACLU Ken Falk
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 My Services 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.
Friday, March 28, 2014
Indiana Appellate Attorney [Russell B. Cate] Incompetence can Ruin your Child Custody Case
28 March 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
I received an email yesterday from a mother who filed a pro se appeal to the Indiana Court of Appeals about a week earlier. She was concerned that the father's attorney had filed a motion to dismiss her appeal. I believe her concerns are overstated as the motion filed by Russell B. Cate of Campbell Kyle Profitt LLP is without merit.
Coincidentally I posted “Why a Competent Attorney is a Must or How to Stay in Prison” just four days ago where I detailed the absurd failings of an attorney filing an appeal. Russell B. Cate seems to be on his way to upstaging the wholly incompetent Thomas F. Little of Power, Little, Little, & Little in Frankfort, Indiana. The crux of Cate's support for his motion is that the petitioner failed to file an Appearance with the Indiana Court of Appeals pursuant to Rule 3.1 of the Indiana Rules of Trial Procedure. Well hold on to them there horses Cowboy Cate. I have a few points to make about this motion. To begin with if you are going to play Black Jack don't bust out the rules for Texas Hold 'em.
As prudent members of a society I feel that we are all obligated to look out for each other, alert those around us to hazards, and do what we can to protect our fellow man from harm. So, after I finished laughing following my perusal of the motion I came up with these additional thoughts which I freely share with you.
Respondent [Cate] has failed to understand or is attempting to confuse and frustrate the court in applying the Indiana Rules of Trial Procedure to a matter initiated pursuant to the rules of and is properly before the Indiana Court of Appeals.
Indiana Appellate Rule 16 provides that “[t]he filing of a Notice of Appeal pursuant to Rule 9 or Notice of Expedited Appeal pursuant to Rule 14.1 satisfies the requirement to file an appearance. Respondent in his Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court clearly demonstrates no injury from his unfounded belief that Petitioner was required to file an appearance in that he includes Petitioner's pro se service address in that document.
Regardless of Respondent's contention that Petitioner in this cause was required to file an Appearance pursuant to the Indiana Rules of Trial Procedure contemporaneous with the Notice of Appeal filed with the Indiana Court of Appeals dismissal would nonetheless be unwarranted.
Dismissing an appeal may be warranted where an appellant fails to substantially comply with the appellate rules. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). However, the court prefers to resolve cases on the merits. Id. Mother did comply with the appellate rules and has not been ordered by the appellate court to supplement her filing with an Appearance. Such an order is generally presumed to be a prerequisite to entertaining a motion for dismissal.
“If an appellant inexcusably fails to comply with an appellate court order, then more stringent measures, including dismissal of the appeal, would be available as the needs of justice might dictate.” Johnson v. State, 756 N.E.2d 965, 967 (Ind. 2001).
Again, Respondent's fallacious argument aside, the courts have been reticent to award attorney fees in appellate cases except in the most egregious of circumstances. “A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious.” Manous v. Manousogianakis, 824 N.E.2d 756, 767-68 (Ind. Ct. App. 2005).
Respondent's motion is replete with inaccuracies, is meritless, and was brought in bad faith for the purpose of harassment, vexatiousness, or delay. Respondent's motion should be denied in its entirety.
Respondent's Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court should be dismissed and the Respondent be admonished for his vexatious filing. Notice as with the recent posting regarding Mr. Thomas F. Little I refer to the actions of the attorney as the party – the Respondent – because the lawyer has no skin in the game. When you employ an attorney to represent you then you have entrusted that attorney with the decision making authority that you relinquished.
This is the hazard of hiring attorneys from firms like Campbell Kyle Profitt LLP or Power, Little, Little, & Little. If you want to be well represented in a child custody hearing or on appeal them it may be wise of you to facilitate the knowledge of someone who reads every child custody decision by the higher courts and knows who are the competent and incompetent attorneys in Indiana. If you would like for me to teach to you the procedures for appeal, how to do research and how to make cogent argument as well as follow the rules then contact my scheduler.
Make a suggestion for me to write about.
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.
