"Among the most shocking, unethical, and unprofessional conduct"

          You may have heard about the three Florida lawyers who orchestrated a scheme to have their opposing counsel arrested for DUI.

          The factfinder in the Florida lawyer-regulatory system recommended that the three be permanently disbarred.

           In an opinion issued today, the Florida Supreme Court said the lawyers’ misconduct “is among the most shocking, unethical, and unprofessional as has ever been brought before this Court.” All three (Adam Robert Filthaut, Robert D. Adams and Stephen Christopher Diaco) now have been permanently disbarred.

            Some jurisdictions, like Florida, have what is called “permanent disbarment.” In Florida, a lawyer who is disbarred may apply for readmission after five years. A permanently disbarred lawyer is never eligible to be readmitted. Arizona does not have permanent disbarment.

            The facts of this discipline case read like an outlandish lawyer novel. The sad thing is that some non-lawyers won’t be shocked by the lawyers’ conduct. Maybe even some lawyers won’t be shocked. This kind of extreme misconduct does nothing to help our profession’s reputation but, as the Florida court says at the end, maybe the discipline will send a message that it won’t be tolerated.

Excerpts from the Florida Supreme Court’s opinion:

The misconduct giving rise to the disciplinary actions against these three attorneys is among the most shocking, unethical, and unprofessional as has ever been brought before this Court. A brief summary of the facts, as found by the referee in his report, is as follows, and the full referee’s report is attached to this opinion. In January 2014, Adams & Diaco, P.A. was defending a radio network and one of its disc jockeys, “Bubba the Love Sponge” Clem, in a civil suit.

Opposing counsel included attorney Phillip Campbell, who represented another disc jockey named Todd Schnitt. Schnitt brought the action against Clem. The lawsuit was hotly contested for over five years and received substantial media coverage in the Tampa area. On the evening of January 23, 2013, while the trial was in recess for the night, Campbell and his co-counsel, Johnathan Ellis, walked to a nearby restaurant, Malio’s Steakhouse, for dinner and a drink. Unbeknownst to Campbell, a paralegal who worked for Respondents happened to be at Malio’s with a friend. Campbell did not know the paralegal, Melissa Personius, but she recognized Campbell as she was leaving the bar.

Personius contacted Adams after she left Malio’s to inform him she had seen Campbell at the bar. Adams then notified Diaco and called Personius back. After this call from Adams, Personius returned to Malio’s. Filthaut called his friend Sergeant Raymond Fernandez of the Tampa Police Department, informing him that Campbell was at Malio’s drinking and might drive while intoxicated. Filthaut did not inform Fernandez that Campbell was opposing counsel in the Schnitt versus Clem litigation.

Upon returning to Malio’s, Personius and her friend took a seat next to Campbell at the bar. Personius told Campbell, Ellis, and another attorney present that she was a paralegal but lied about where she was employed. Personius openly and obviously flirted with Campbell, encouraged him to drink, and bought him drinks. All the while, without Campbell’s knowledge, communications continued among Respondents, Personius, and Fernandez. Personius kept Respondents informed about what was transpiring with Campbell inside Malio’s. Fernandez assigned another officer to stake out Malio’s to see if Campbell would drive while intoxicated.

By 9:30 or 9:45 p.m., Personius’ friend and the other attorneys with Campbell had left Malio’s. Personius also had learned during the evening that Campbell had walked to Malio’s and intended to walk home—he lived a few blocks away. Witnesses who observed Personius that evening testified that she appeared to be intoxicated. Campbell observed the same, and he offered to call her a cab. She told him her car was in valet parking. He offered to see if it could be kept overnight. She told him that she needed to get to her car. He took her valet ticket, had the car brought up, and confirmed with the valet that it could be left overnight. She then refused to leave her car and insisted that it needed to be moved to a secure public parking lot where she could have access to it. He tried to convince her to leave the car, but she insisted that it had to be moved. Out of frustration, he agreed to move the car to a lot near his apartment building and call her a cab from there.

Shortly after leaving Malio’s driving Personius’ car, Campbell was pulled over by Fernandez and subsequently arrested for DUI and taken to jail. Additionally, Campbell inadvertently left his trial bag in Personius’ car. Personius and her car were later driven to her home by an associate attorney in Respondents’ firm.

The next day, Stephen Diaco made several statements to the media about the DUI of his opposing counsel Campbell, how the arrest caused the trial to be continued, and how Campbell’s behavior was a mockery of the judicial system and an embarrassment to Diaco as an attorney. Additionally, the Respondents were in possession of Campbell’s trial bag for several hours and made no attempt to inform him or return the bag until after Personius’ identity was discovered and Campbell’s co-counsel, Ellis, demanded return of the bag.

* * *

The Respondents’ actions constituted a deliberate and malicious effort to place a heavy finger on the scales of justice for the sole benefit of themselves and their client. The personal and professional harm inflicted upon Campbell (a fellow attorney) and his clients’ case, upon Sergeant Fernandez (a personal friend of Filthaut and officer of the law), and upon the legal system, the legal profession, and the public’s confidence in both, was simply collateral damage from the Respondents’ point of view. The Respondents’ willingness to inflict and indifference to causing such harm is, in the words of the referee, quite “stunning.” The referee did not find remorse as a mitigating factor for either Respondent, and neither of them challenges this.

Given all of these circumstances, we conclude that the referee’s recommendation of permanent disbarment is warranted and appropriately serves the three-pronged purpose of attorney discipline: (1) it is fair to society; (2) it is fair to the Respondents; and (3) it is severe enough to deter other attorneys from similar misconduct.... We can only hope that our unanimous decision to approve the referee’s recommendation to permanently disbar these attorneys, a sanction not contested by and already imposed upon the third attorney involved, Stephen Diaco, will serve to warn other attorneys of the high standards of professional conduct we demand of all attorneys. And we hope in some small way, it will send a message to the public that this Court will not tolerate such outrageous misconduct on the part of attorneys admitted to practice law in Florida.

 

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