State ex rel. Okla. Bar Ass'n v. Pistotnik

• Decision Date: 24 November 2020
• Docket Number: SCBD 6859
• Citation: 477 P.3d 376
• Parties: STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Bradley A. PISTOTNIK, Respondent.
• Court: Oklahoma Supreme Court

477 P.3d 376

STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Bradley A. PISTOTNIK, Respondent.

SCBD 6859

Supreme Court of Oklahoma.

FILED NOVEMBER 24, 2020

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...