Tuesday, November 24, 2020

Accessory After The Fact

The Oklahoma Supreme Court has imposed a two-year and a day suspension for conduct that led to a federal conviction for accessory after the fact. 

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.

Shortly after the attorney hired Dorsett

 Six days later, on September 25, 2014, Dorsett sent extortionate threats and initiated a flood of emails to the servers of Ripoff Report, Leagle, 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.

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 anyway, 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."

The court

 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."

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.

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.

(Mike Frisch)


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