OSCN Found Document:STATE ex rel. OKLAHOMA BAR ASSOCIATION v. PISTONIK
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
I. FACTUAL BACKGROUND
¶1 Respondent Bradley Alan Pistotnik was admitted to the practice of law in the State of Oklahoma in 1981 and in the State of Kansas in 1982. Respondent attended the University of Kansas School of Law, and he currently lives in Wichita, Kansas. He maintains clients in both states with the majority of his practice being in Kansas. Respondent's federal criminal conviction in Kansas arose from his conduct in 2014, after he hired a web developer, David Dorsett, to build a website for his newly formed law firm. Respondent opened this new law office following a contentious dissolution of his old firm and partnership with his brother. The winding up of that business led to competing lawsuits between the brothers, including an action for receivership to retain control over clients, and a court order from a Kansas judge directing them to disable the old website, www.pistotniklaw.com, and create their own independent sites. Hr'g Tr., 120-21.
¶2 On September 15, 2014, after receiving an email advertisement from David Dorsett, Respondent reached out, and the two met at Respondent's law office. During this initial meeting, Respondent hired Dorsett to: 1) build the new website, 2) serve as an information technology expert in the dissolution proceeding, and 3) provide assistance with online reputation management. Respondent was concerned that after the fallout at the firm, his brother may be publishing negative information about him online. At the conclusion of the meeting, Respondent wrote Dorsett a check for $5,000, and gave him full access to his office computers and passwords. Id. at 124.1
¶3 Four days later, on September 19, 2014, Respondent met with Dorsett a second time. Dorsett instructed Respondent to search for his name online to see what results appeared. Respondent did so the following day and located an article on RipoffReport.com describing him as a criminal. Respondent immediately emailed Dorsett the following: "Dave look at this new page from yesterday and tell me how we get rid of it[;] states created yesterday[.]" Complainant's Ex., 2. Dorsett informed Respondent he had a friend who could "de-index" negative articles and build new positive pages to make the unwanted content appear further down in the search results. Hr'g Tr., 127. Respondent testified that he agreed only to this legal de-indexing service. Id. at 128-29. On September 22, 2014, Respondent also emailed Dorsett: "Dave, can you find the IP address for this site and particular claim number to establish the location of the sender?" Complainant's Ex., 3. Respondent titled both of these emails: "Ripoff Report" and "Ripoff page," respectively.
¶4 Six days later, on September 25, 2014, Dorsett sent extortionate threats and initiated a flood of emails to the servers of Ripoff Report2, Leagle3, and the Arizona law firm that represented Ripoff Report, in effort to frustrate the recipients and cause them to remove all information pertaining to Respondent. Resp's Ex., 4, 2. These emails impaired the servers of Ripoff Report, Leagle, and the Arizona law firm, rendering their communications and data inaccessible. Along with the emails, Dorsett sent the following threat separately to all three victims, each reflecting the particular site's name:
Remove this page and we stop [link of subject article removed] . . . [I]f you don't remove it we will begin targeting your advertisers and explain that this will stop happening to them once they pull their ads from leagle.com or leagle.com kills this page . . . [link removed] You have 4 hours before we start hitting your advertisers.
Id.
¶5 Later this day, as the communications were still inundating the businesses, two attorneys from the firm representing Ripoff Report contacted Respondent at his law office. The attorneys advised Respondent they were recording the phone call. This recording is included in the record before this Court. Complainant's Ex., 7. The lawyers told Respondent that based on the threats regarding negative content about him, Respondent was their only link for determining who was responsible. Respondent denied having any knowledge or involvement and falsely stated that he had never asked or hired anyone to help him with reputation management. The lawyers asked Respondent repeatedly if he knew any information that could help them in any way, emphasizing that their servers were on the brink of crashing unless they identified the attacker. The lawyers informed Respondent they were turning the matter over to the FBI. Respondent then began shifting the blame to his brother, stating how he was involved in contentious litigation with him so he would most likely be the culprit. Respondent said he would "call around" to see if he could find out anything but reemphasized falsely that he had "not hired anybody," so whoever was responsible was "doing it on their own."4
¶6 Immediately after hanging up, Respondent called Dorsett, who confirmed the attacks. According to Respondent, he "chewed him out" and "screamed at him," asking "what the hell was wrong with him." Hr'g Tr., 156. Ripoff Report ultimately acquiesced in the ransom and removed the negative review the same day. Dorsett also sent Respondent an email detailing his methods and confirming the successful removal. Four days later, on September 29, 2014, Dorsett emailed Respondent again, this time attaching an invoice listing the reputation services related to the attacks and noting: "I'm pretty sure nobody has ever gotten a full removal from either of those sites, and no reputation companies will even attempt it for under $2,500 per page." Complainant's Ex., 4. Respondent paid the invoice by check the same day.5
¶7 Even if Respondent was initially unknowing of Dorsett's plan, after the attacks he chose to persist in the lie, not contact the lawyers, and then pay for the completed scheme. It was not until months later that Respondent learned Dorsett had actually caused the publication of the negative articles in a larger ploy to also extort Respondent in addition to the other three victims. At this point, Respondent went to the FBI and reported Dorsett. Doing so, he described the events as if he was completely innocent in the scheme. In fact, Respondent was initially listed as a victim in the FBI's investigation initiated against Dorsett alone. Hr'g Tr., 188. The FBI agent who investigated the criminal case testified at the PRT hearing that it was not until later in the investigation against Dorsett that their office discovered Respondent had excluded two incriminating emails from evidence when reporting Dorsett for extorting him. Id. at 195. At this point, the FBI learned the full extent of Respondent's business relationship with Dorsett. Id. In summary, Respondent accepted and helped conceal the fraud when he believed it was carried out to his benefit and then reported it only after learning the larger scheme was against him as well. Respondent's dishonesty regarding the true nature of his and Dorsett's involvement in the attacks led to his criminal conviction.
¶8 On July 17, 2018, after much investigation and several delays in the prosecutions of both men, the United States Attorney's Office ("USAO") for the District of Kansas filed a ten-count Indictment against Respondent in United States v. Pistotnik, Case No. 18-CR-10099-01.6 Following plea negotiations, Respondent agreed to plead guilty to three counts of Accessory After the Fact, in violation of 18 U.S.C. § 3.7 The USAO filed the three-count Information on October 15, 2019. The following day, the United States District Court for the District of Kansas accepted the plea, adjudicated Respondent guilty, and sentenced him to payment of a $375,000 fine, restitution of $55,200, and a special assessment of $300, all due immediately in a lump sum of $430,500. Respondent paid this amount in full on the day of his plea and sentencing.
II. BAR DISCIPLINARY PROCEEDINGS
¶9 On October 31, 2019, the OBA filed its notice and certified copies of the record relating to the conviction pursuant to Rule 7.2 of the RGDP. Respondent requested to provide supplemental information relevant to the appropriateness of an interim suspension. The Court denied Respondent's request and on November 18, 2019, entered an order of immediate interim suspension. The Court directed Respondent to show cause, if any, no later than December 4, 2019, why the interim suspension should be set aside and to request a hearing before the PRT. Respondent filed a response on December 4, 2019, asserting that he should not be interim suspended and the matter should be dismissed. On December 30, 2019, Respondent requested the mitigation hearing. On January 2, 2020, the Court granted the Rule 7 hearing on the limited scope of mitigation and recommendation of discipline.
¶10 On January 15, 2020, the Court granted Respondent's unopposed motion for a continuance. Respondent then filed a Motion to Stay Proceedings pending resolution of the bar disciplinary proceeding initiated in the State of Kansas. The OBA objected, and on March 9, 2020, the Court ordered the mitigation hearing to proceed. Evidence regarding discipline imposed in that case, if any, is not included in the record before this Court. Based on both the first and third emergency orders regarding the COVID-19 state of disaster, the PRT continued the mitigation hearing on two occasions, first on March 9, 2020, and then on May 7, 2020. The PRT ultimately held the hearing on June 5, 2020. Respondent presented exhibits and seven character witnesses, including himself, and the OBA presented exhibits and two witnesses. The PRT filed its report on July 6, 2020, and the Court received the completed record with all briefs on August 21, 2020.
¶11 Respondent asks this Court to impose a private reprimand as discipline for his conduct. The OBA recommends a six-month suspension, retroactive to the date of interim suspension. The PRT rejects both of these recommendations and asserts that suspending Respondent for a period of one year, effective from the date of our opinion, is necessary to accomplish the goals of discipline.
III. PRIOR DISCIPLINE
¶12 Respondent has been previously disciplined in the State of Kansas on five occasions. Complainant's Ex., 1. The Kansas Office of the Disciplinary Administrator confirms that Respondent has received four informal admonitions and one suspension from the practice of law for a period of one year. The four informal admonitions, which are public but unpublished forms of discipline, date back to 1985, 1991, and 1994. Kansas suspended Respondent's license in 1993, for rule violations involving conflicts of interest and misconduct with clients. Recognizing these incidents of discipline date back more than two and three decades, we do not accord them undue weight but rather reference them in context with Respondent's full legal career.
IV. STANDARD OF REVIEW
¶13 This Court possesses original, exclusive, and nondelegable jurisdiction over all attorney disciplinary proceedings in this State. 5 O.S.2011, § 13; RGDP, Rule 1.1. The purpose of the Court's licensing authority is not to punish the offending lawyer but to safeguard the interests of the public, the courts, and the legal profession. State ex rel. Okla. Bar Ass'n v. Friesen, 2016 OK 109, ¶ 8, 384 P.3d 1129, 1133. In a Rule 7 summary disciplinary proceeding, generally the central concern is to inquire into the lawyer's continued fitness to practice and determine what discipline should be imposed. State ex rel. Okla. Bar Ass'n v. Drummond, 2017 OK 24, ¶ 19, 393 P.3d 207, 214; State ex rel. Okla. Bar Ass'n v. Hastings, 2017 OK 43, ¶ 17, 395 P.3d 552, 557. The range of permissible inquiry stands confined to issues germane to mitigation or severity of discipline to be visited upon the offending attorney. State ex rel. Okla. Bar Ass'n v. Livshee, 1994 OK 12, ¶2, 870 P.2d 770, 772. To administer discipline evenhandedly, the Court considers prior decisions involving similar misconduct, but "the extent of discipline must be decided on a case-by-case basis because each situation will usually involve different transgressions and different mitigating circumstances." State ex rel. Okla. Bar Ass'n v. Wilcox, 2014 OK 1, ¶ 48, 318 P.3d 1114, 1128.
¶14 The Court considers de novo every aspect of a disciplinary inquiry, and the PRT's findings of fact, conclusions of law, and recommendation of discipline are not binding on this Court. State ex rel. Okla. Bar Ass'n v. Ezell, 2020 OK 55, ¶ 13, 466 P.3d 551, 554; State ex rel. Okla. Bar Ass'n v. Cooley, 2013 OK 42, ¶ 4, 304 P.3d 453, 454. The record consisting of the Notice of Deferment8, transcripts, exhibits, PRT Report, briefs, and Application to Assess Costs is sufficient for the Court's de novo review and determination of appropriate discipline.
V. DISCIPLINE
¶15 "A lawyer who has been convicted or has tendered a plea of guilty or nolo contendere . . . in any jurisdiction of a crime which demonstrates such lawyer's unfitness to practice law . . . shall be subject to discipline." RGDP, Rule 7.1. The record of conviction constitutes "conclusive evidence of the commission of the crime . . . and shall suffice as the basis for discipline." RGDP, Rule 7.2. While "a criminal conviction does not ipso facto establish an attorney's unfitness to practice law," State ex rel. Okla. Bar Ass'n v. Trenary, 2016 OK 8, ¶ 12, 368 P.3d 801, 806, the commission of any act that would reasonably "bring discredit upon the legal profession, shall be grounds for disciplinary action." RGDP, Rule 1.3.
¶16 It is professional misconduct for an attorney to "commit a criminal act which reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Rule 8.4(b), Oklahoma Rules of Professional Conduct ("ORPC"), 5 O.S.2011, ch.1, app. 3-A. It is also professional misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." ORPC, Rule 8.4(c). A misrepresentation under Rule 8.4(c) of the ORPC requires clear and convincing evidence that the lawyer had an underlying bad intent and made the misrepresentation for the purpose of deceiving. State ex rel. Okla. Bar Ass'n v. Besly, 2006 OK 18, ¶ 43, 136 P.3d 590, 605.
¶17 This Court has repeatedly disbarred attorneys following convictions for crimes involving dishonest conduct. See, e.g., State ex rel. Okla. Bar Ass'n v. Shofner, 2002 OK 84, 60 P.3d 1024 (disbarment after federal conviction for fraudulently concealing assets in bankruptcy proceeding); State ex rel. Okla. Bar Ass'n v. Crabtree, 1995 OK 123, 907 P.2d 1045 (disbarment after federal conviction for money laundering and fraudulently concealing assets in bankruptcy proceeding); State ex rel. Okla. Bar Ass'n v. Hornung, 1991 OK 56, 813 P.2d 1041 (disbarment following two federal convictions for conspiring to conceal taxable income and facilitating an unlawful interstate business enterprise). In certain disciplinary cases involving crimes of dishonesty, however, we have imposed discipline less severe than disbarment. In State ex rel. Okla. Bar Ass'n v. Dennison, 1994 OK 33, 872 P.2d 403, we imposed a 31-month suspension following the attorney's conviction for making false statements to a financial institution. In State ex rel. Okla. Bar Ass'n v. Willis, 1993 OK 138, 863 P.2d 1211, we imposed a 15-month suspension following the attorney's felony conviction for obtaining controlled substances by misrepresentation. In State ex rel. Okla. Bar Ass'n v. Simms, 1978 OK 153, 590 P.2d 184, we imposed a suspension for more than 20 months after the attorney was convicted for willfully making and subscribing tax returns believing them to not be true.
¶18 We particularly note two previous cases involving dishonest conduct similar to that of Respondent. In State ex rel. Okla. Bar Ass'n v. Harlton, 1983 OK 87, ¶ 1, 669 P.2d 774, 774, the attorney pled guilty in the United States District Court for the Northern District of Oklahoma for failing to disclose evidence used in the commission of the crime to help his client avoid detection. Knowingly and with the purpose of deceiving, Harlton "embraced the role of an accessory to a crime as a personal accommodation to its perpetrator." The Court suspended Harlton's license for five years. In State ex rel. Oklahoma Bar Ass'n v. Kirk, 1986 OK 9, 6, 723 P.2d 264, 264, the attorney pled no contest to conspiracy to commit an offense or defraud the United States in violation of 18 U.S.C. § 371. There the attorney actively engaged in a scheme to mislead federal immigration officials by representing that his client was legitimately married to an American citizen despite knowing the marriage was entered into solely for the purpose of securing immigration documents. Kirk made the fraudulent representations and then accepted a fee for his services. We suspended Kirk's license for five years.
¶19 Here, Respondent acted as an accessory after the fact and paid for rather than accepted payment for illegal conduct. Additionally, the misrepresentations made in Harlton and Kirk were motivated, in part, by a misguided desire to protect a client. Here, Respondent's misrepresentations and criminal payment of Dorsett were motivated by a desire to protect himself and avoid detection of his own involvement in the crime. The fraud that Respondent covered up and paid for did not involve a client or a case he was handling for a client. His actions did, however, involve his handling of the dissolution proceeding in which he was a litigant and in many ways acting in his professional capacity as a lawyer.
VI. DISCUSSION
¶20 Even if Respondent initially hired Dorsett innocently and without knowing he would act illegally, conclusive evidence of Respondent's guilty plea and conviction establishes he acquiesced in the scheme after the fact. After the attorneys for RipoffReport.com informed Respondent of the cyberattacks, he repeatedly and knowingly lied to these victims, denying he had ever hired or spoken to anyone about assisting him with reputation management. In reality, just days before this, Respondent had not only hired Dorsett, but had sent him the precise link of the negative review on Ripoff Report, asking him "how we get rid of it."
¶21 Respondent continued denying any knowledge of the scheme even after the lawyers proffered that Respondent could have been a completely innocent bystander. Despite this opportunity, Respondent doubled down and pointed the finger at his brother. Confirming the truth immediately after the phone call, Respondent chose not to inform the lawyers of Dorsett's identity and allowed the attacks to continue damaging the servers. Most telling of all, Respondent then paid Dorsett after that verbal communication and after Dorsett sent two emails describing his methods and touting the success of the extortion. Hr'g Tr., 176; PRT Report, 3. The record shows clearly and convincingly that Respondent misrepresented and withheld facts with an underlying bad intent and for the purpose of deceiving.
¶22 This behavior of dishonesty is precisely what Respondent pled guilty to in federal court. Yet, in the mitigation hearing before the PRT, Respondent equivocated regarding his culpability and involvement in the scheme. The PRT described that it was "suspect of the truthfulness of Respondent during his testimony" at the mitigation hearing and concluded he "was not forthright with his version of the facts." PRT Report, 3. The PRT found notable that Respondent testified that Dorsett acted outside the parameters of what he ever intended him to do, yet admitted that he paid Dorsett after fully appreciating the criminal nature of his conduct. Id.
¶23 In mitigation, Respondent self-reported his criminal conviction in Kansas to the OBA. He also timely filed the required affidavit of compliance with RGDP, Rule 9.1, withdrawing from his cases in Oklahoma. Nothing in the record suggests Respondent has violated his interim suspension. Respondent's witnesses at the PRT hearing testified to his involvement in charitable organizations and his reputation in the Wichita legal community for working diligently for his clients. Many of these witnesses testified that the criminal conviction was outside of Respondent's character. All of Respondent's witnesses, however, admitted under cross-examination that they were "not aware of the exact crimes to which Mr. Pistotnik pled guilty, nor were they aware of any other details other than what they read in the news media." PRT Report, 2.
¶24 The criminal investigation and Respondent's conviction in federal court garnered considerable media attention, both in Kansas and nationally. These publications identified Respondent as a practicing attorney. His misconduct reflected poorly on the OBA and brought disrepute on the legal professional as a whole. A review of the record, particularly Respondent's testimony at the mitigation hearing, reveals he does not fully accept responsibility for his illegal conduct and largely maintains he was an innocent pawn in Dorsett's scheme.9 Even following his guilty plea and conviction, Respondent does not show sincere remorse aside from the embarrassment his actions have caused him and his family. Considering appropriate discipline, we note that while handing down a conviction, the federal district court sentenced Respondent to payment of fines and restitution rather than a term of confinement.
VII. CONCLUSION
¶25 Respondent pled guilty to three criminal misdemeanors predicated on deceit. He carried out these misrepresentations in protection of his own interests to the detriment of others. Respondent's crimes involved fraudulent conduct as a litigant and in many ways in his professional capacity as a lawyer. Upon de novo review, we conclude that a suspension of two years and a day will best serve the welfare of the public and maintain the integrity of the bar. Because Respondent will be suspended for a period exceeding two years, reinstatement is not automatic. See RGDP, Rule 11.1. Upon applying for reinstatement, Respondent must satisfy all requirements of RGDP 11, and present stronger proof of his qualifications than a person seeking admission for the first time. RDGP, Rule 11.4; In re Reinstatement of Mumina, 2009 OK 76, ¶ 8, 225 P.3d 804, 809. The OBA's Application to Assess Costs is granted. Respondent is ordered to pay costs in the amount of $2,465.40, within 90 days after the date of this opinion. RGDP, Rule 6.16.
RESPONDENT IS SUSPENDED FOR TWO YEARS AND ONE DAY, EFFECTIVE FROM THE DATE OF THIS OPINION, AND ORDERED TO PAY COSTS.
Darby, V.C.J., Winchester, Edmondson, Combs, Kane and Rowe, JJ., concur;
Gurich, C.J., and Kauger, J., concur in part; dissent in part;
Gurich, C.J., with whom Kauger, J., joins, concurring in part; dissenting in part;
I would assess a two-year suspension.
Colbert, J., dissents.