& SC14-1056 The Florida Bar v. Robert D. Adams and The Florida Bar v. Adam Robert Filthaut , 198 So. 3d 593 ( 2016 )

Supreme Court of Florida
____________
No. SC14-1054
____________
THE FLORIDA BAR,
Complainant,
vs.
ROBERT D. ADAMS,
Respondent.
____________
No. SC14-1056
____________
THE FLORIDA BAR,
Complainant,
vs.
ADAM ROBERT FILTHAUT,
Respondent.
[August 25, 2016]
PER CURIAM.
We have for review a referee’s report recommending that Robert D. Adams
and Adam Robert Filthaut be found guilty of professional misconduct and
permanently disbarred. We have jurisdiction. See art. V, § 15, Fla. Const. As
more fully explained below, we approve the referee’s factual findings,
recommendations as to guilt, and recommendations as to discipline in their
entirety. 1
FACTS
The Respondents in these two cases, Adam Robert Filthaut and Robert D.
Adams, were members of a law firm, Adams & Diaco, P.A., in Tampa, Florida.
Stephen Christopher Diaco was also a member of this firm and also took part in the
events that are the subject of these proceedings. As a result of disciplinary action
against Diaco and the withdrawal of his petition seeking review of the referee’s
report, which jointly addressed Adams, Filthaut, and Diaco, Diaco has been
permanently disbarred. See Fla. Bar v. Diaco, No. SC14-1052 (Fla. Jan 28, 2016).
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.2 In January 2014, Adams & Diaco, P.A. was defending a radio network
1. The referee’s report addressed both Adams and Filthaut, as well as a third
respondent, Stephen Diaco. Diaco’s case has been disposed of separately, and we
have consolidated these remaining two cases.
2. The referee’s very detailed and thorough report is incorporated herein as
a part of this Court’s opinion. We commend the referee, the Honorable William
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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 cocounsel, 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.
Douglas Baird, for his dedication and careful consideration of these three difficult
attorney disciplinary cases.
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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
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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
cocounsel, Ellis, demanded return of the bag.
The referee’s report recommended permanent disbarment for Diaco, Adams,
and Filthaut. The report sets forth the extensive communications among the three
Respondents, Personius, and Fernandez on the night at issue. The referee found
that Respondents engaged in numerous acts of misconduct, including a previous
attempt to have Campbell arrested for DUI by Filthaut and his friend Sergeant
Fernandez.
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Respondents Adams and Filthaut seek review of the referee’s report and
recommendations. Neither Adams nor Filthaut challenges the referee’s factual
findings. Filthaut challenges the referee’s denial of a motion to disqualify, the
denial of a motion for summary judgment, the referee’s alleged reliance on facts
not in evidence, and the referee’s recommendation that he be found guilty of
violating Rule Regulating the Florida Bar 3-4.3. Filthaut also challenges the
referee’s recommendation of permanent disbarment, arguing for the lesser sanction
of a rehabilitative suspension up to disbarment. Adams challenges only the
recommendation of permanent disbarment and advocates instead for disbarment.
As discussed below, we approve the referee’s recommendations in full.
ANALYSIS
First, we reject without further discussion Filthaut’s claim that the referee
improperly failed to disqualify himself, as the grounds alleged were legally
insufficient. Regarding his claim that the referee improperly relied upon facts not
in evidence, we also reject this claim as meritless.
As to Filthaut’s claim that a partial summary judgment should have been
granted in his favor on various rule violations, this is also without merit. The
complaint and evidence produced at the final hearing clearly showed that Filthaut
actively participated with Adams and Diaco in a scheme to improperly cause the
arrest of opposing counsel during the midst of an ongoing high-profile civil trial.
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The arrest was designed to and had the effect of disrupting the proceedings,
including a postponement of the witness testimony and the necessity of juror
interviews regarding the publicity surrounding the arrest. Thus, this claim is
without merit.
Tied to Filthaut’s argument pertaining to the denial of summary judgment is
his argument that he should not have been found guilty of violating rule 3-4.3.
Rule 3-4.3 provides, in pertinent part, that the “commission by a lawyer of any act
that is unlawful or contrary to honesty and justice . . . may constitute a cause for
discipline.” Filthaut appears to argue that the referee’s recommendation that he be
found guilty of violating this rule should be disapproved because there was no
direct evidence that he destroyed or consented to the destruction of the cell phone
that he used during the events at issue in this case. This argument is meritless, and
ignores the referee’s detailed findings that Filthaut violated rule 3-4.3 by actively
conspiring with Diaco, Adams, Personius, and Fernandez to improperly effect
Campbell’s DUI arrest. In addition, the referee found that Filthaut specifically
refused to respond to questions confirming that he had erased, secreted, or
otherwise destroyed cell phone communications that would constitute direct
evidence of the nature of his communications that night. The referee “indulged all
the adverse inferences that may permissibly be imposed as a result.” Filthaut does
not dispute that the referee appropriately indulged such adverse inferences, and he
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provides insufficient support for his argument that such cannot serve as a basis for
the referee’s findings that he too erased or destroyed the cell phone
communications that would have further implicated him in the scheme to have
Campbell arrested. Accordingly, we approve the referee’s recommendation that
Filthaut be found guilty of violating rule 3-4.3.
As for Adams’ and Filthaut’s challenges to the referee’s recommendation
that they be permanently disbarred, the standard of review for a referee’s
recommendation as to discipline is as follows:
In reviewing a referee’s recommended discipline, this Court’s scope
of review is broader than that afforded to the referee’s findings of fact
because, ultimately, it is the Court’s responsibility to order the
appropriate sanction. See Fla. Bar v. Anderson, 538 So. 2d 852, 854
(Fla. 1989); see also art. V, §15, Fla. Const. However, generally
speaking, this Court will not second-guess the referee’s recommended
discipline as long as it has a reasonable basis in existing caselaw and
the [Florida] Standards for Imposing Lawyer Sanctions. See Fla. Bar
v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).
Fla. Bar v. Ratiner, 46 So. 3d 35, 39 (Fla. 2010).
Neither Filthaut nor Adams seriously contests the referee’s recommendation
that they be disbarred, and their co-respondent, Stephen Diaco, has already agreed
to and been permanently disbarred. Filthaut and Adams simply contend that their
misconduct is not so severe as to warrant permanent disbarment. The most
persuasive argument in Respondents’ favor is that in imposing permanent
disbarment, this Court has usually addressed patterns of continuing egregious and
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unrepentant misconduct demonstrating that the respondent attorney is not
amenable to rehabilitation and is beyond redemption. For example, in Florida Bar
v. Norkin, 183 So. 3d 1018, 1023 (Fla. 2015), the Court permanently disbarred an
attorney who had been previously suspended from the practice of law for two years
for relentless unprofessional behavior towards judges and opposing counsel and
who had been ordered to appear before the Court for a public reprimand.3
Following his suspension, Norkin failed to fully comply with the suspension order,
continued to engage in the practice of law, sent unprofessional and threatening
e-mails to Bar counsel, and during the public reprimand administered by the Court
“intentionally smirked and stared down each Justice one by one.” Id. The Court
addressed Norkin’s discipline as follows:
Moreover, given Norkin’s continuation of his egregious behavior
following his suspension and during the administration of the public
reprimand, we conclude that he will not change his pattern of
misconduct. Indeed, his filings in the instant case continue to
demonstrate his disregard for this Court, his unrepentant attitude, and
his intent to continue his defiant and contemptuous conduct that is
demeaning to this Court, the Court’s processes, and the profession of
attorneys as a whole. Such misconduct cannot and will not be
3. In the previous disciplinary case, the Court found that despite repeated
warnings from judges, Norkin continually engaged in rude, antagonistic, and
extremely unprofessional behavior, including making false accusations against a
senior judge, disrupting multiple court proceedings by yelling at judges and
exhibiting disrespectful conduct, and relentless, unethical, and denigrating
behavior toward opposing counsel. Fla. Bar v. Norkin, 132 So. 3d 77, 89-92 (Fla.
2013). Norkin also had previously been publicly reprimanded and required to
attend ethics school for similar misbehavior. Id. at 91.
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tolerated as it sullies the dignity of judicial proceedings and debases
the constitutional republic we serve. We conclude that Norkin is not
amenable to rehabilitation, and as argued by the Bar, is deserving of
permanent disbarment.
Id. Similarly, in Florida Bar v. Behm, 41 So. 3d 136 (Fla. 2010), the Court
permanently disbarred an attorney who was guilty of trust account violations and
knowing failure to file or pay federal income taxes for the entire time he was
admitted to practice law. The attorney had previously been publicly reprimanded
as a result of misconduct in connection with a probate matter and had been
previously suspended for ninety-one days for misconduct in a guardianship matter
“that raised serious issues concerning his fitness to practice law.” Id. at 151. In
addition, at oral argument before this Court he declared his intention “to persist in
refusing to file income tax returns ‘[u]nless the law changes or unless someone can
show [him] a law that makes [him] clearly liable for income tax, for federal income
tax.’ ” Id. The Court concluded that the “only appropriate sanction under these
circumstances—cumulative misconduct and a persistent course of unrepentant
misconduct—is permanent disbarment from the practice of law.” Id.
Here, as to both Adams and Filthaut, the referee found as mitigating factors
the absence of a prior disciplinary record and good character and reputation. Both
have enjoyed relatively lengthy unblemished careers—Adams had been a member
of the Florida Bar for approximately 17 years and Filthaut had been a member
approximately 13 years at the time the misconduct occurred. And, both were able
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to present multiple character witnesses on their behalf. On the other hand, in
recommending permanent disbarment, the referee made factual findings linking
Adams to a prior incident of unethical behavior involving paralegals for his firm
surreptitiously photographing the office of a chiropractor who was a plaintiff in a
case in which Adams was counsel for the defendant, and Filthaut had orchestrated
(and Adams knew about) a prior attempt to have Campbell arrested.
On balance, we conclude that if the misconduct involved in this case is not
comparable to that committed in the cases above, this is in part because the
misconduct in this case is unique and essentially unprecedented, at least as
documented in this Court’s prior case law. 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.
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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. See Fla. Bar v. Lawless, 640 So. 2d 1098, 1100 (Fla. 1994).
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.
CONCLUSION
Accordingly, Robert D. Adams and Adam Robert Filthaut are hereby
permanently disbarred from the practice of law in the State of Florida. Because the
Respondents are currently suspended, the permanent disbarment is effective
immediately. Respondents shall fully comply with Rule Regulating the Florida
Bar 3-5.1(g).
Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Robert D. Adams in
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the amount of $14,558.66, and from Adam Robert Filthaut in the amount of
$14,178.28, for which sum let execution issue.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS DISBARMENT.
Original Proceeding – The Florida Bar
John F. Harkness, Jr., Executive Director, Tallahassee, Florida; Jodi Anderson
Thompson and Katrina S. Brown, Bar Counsel, Tampa, Florida; and Adria E.
Quintela, Staff Counsel, Sunrise, Florida,
for Complainant The Florida Bar
William Frederic Jung of Jung & Sisco, P.A., Tampa, Florida,
for Respondent Robert D. Adams
Mark Jon O’Brien, Tampa, Florida,
for Respondent Adam Robert Filthaut
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IN THE SUPREME COURT OF FLORIDA
(Before a Referee)
THE FLORIDA BAR, Supreme Court Case
No. SC14-1052
Complainant,
The Florida Bar File
v. No. 2013-10,735 (13F)
STEPHEN CHRISTOPHER DIACO,
Respondent.
HI! FLORIDA BAR, Supreme Court Case
No. SC14-1054
Complainant,
The Florida Bar File
No. 2013-10,736 (13F)
ROBERT D. ADAMS,
Respondent.
THE FLORIDA BAR, Supreme Court Case
No. SC14-1056
Complainant,
The Florida Bar File
v. No. 2013-10,737 (13F)
ADAM ROBERT FILTHAUT,
Respondent.
REPORT OF THE REFEREE
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I. SUMMARY OF PROCEEDINGS
Pursuant to the undersigned being duly appointed as Referee to conduct
disciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the
following proceedings occurred:
On June 2, 2014, The Florida Bar filed separate Complaints against the
Respondents, Stephen Christopher Diaco, Esq. ("DIACO"), Robert D. Adams,
Esq. ("ADAMS"), and Adam Robert Filthaut, Esq. ("FILTHAUT"). On June 4,
2014, Amended Complaints were filed against Respondents ADAMS and
FILTHAUT. The Honorable W. Douglas Baird was appointed as Referee in each
matter pursuant to the Supreme Court of Florida's June 4, 2014 Order and the June
10, 2014 Order of the Honorable J. Thomas McGrady, Chief Judge of the Sixth
Judicial Circuit. Because the cases against the Respondents arise out of the same
facts, the cases were consolidated for the purpose of discovery on July 28, 2014,
and subsequently consolidated for trial. Prior to trial, the Respondents filed
motions for partial summary judgment, which were denied on May 11, 2015. The
trial was bifurcated, with the guilt phase conducted between May 11, 2015, and
May 21, 2015, and the sanctions phase conducted on August 6-7, 2015.
During the course of these proceedings, Respondent DIACO was
represented by Gregory W. Kehoe, Esq., Danielle Kemp, Esq., and Joseph A.
Corsmeier, Esq. Respondent ADAMS was represented by William F. Jung, Esq.
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and Respondent FILTHAUT was represented by Mark J. O'Brien, Esq. The
Florida Bar was represented by Jodi A. Thompson, Esq., Sheila Tuma, Esq., and
Katrina Brown, Esq. All items properly filed, including pleadings, transcripts,
exhibits, and this Report, constitute the record in this case and are being forwarded
to the Supreme Court of Florida.
II. FINDINGS OF FACT: TFB No. 2013-10,735 (13Fh No. 2013-10,736
(13Fh No. 2013-10,737 (13F)
A. Jurisdictional Statement
Respondents are, and at all times mentioned during this Investigation were,
members of The Florida Bar subject to the jurisdiction and Disciplinary Rules of
the Supreme Court.
B. Narrative Summary - all cases
Narrative Summary Introduction
This matter involves three members of The Florida Bar who the Referee
finds, individually and through a conspiracy among themselves and others,
violated the Standards of Conduct and Rules of Professional Conduct of the Rules
Regulating Members of The Florida Bar. The Referee believes that in order to
more easily explain the factual circumstances that were proven by clear and
convincing evidence at trial, a comprehensive narrative of each of the key findings
will provide a more comprehensible format. Preceding that narrative, the major
participants in the events that resulted in these proceedings are identified.
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Respondent DIACO is an equity partner in the law firm of Adams & Diaco, P.A.,
whose offices are located in the Bank of America Building in downtown Tampa,
Florida. He is the brother of Joseph A. Diaco, Jr.,. Esq., who is also an equity
partner in Adams & Diaco, P.A. Throughout this proceeding, Respondent DIACO
has refused to testify, either in deposition or at trial, based on his right against self-
incrimination.
Respondent ADAMS is the third equity partner in Adams & Diaco, P.A., along
with the Diacos. Throughout this proceeding, Respondent ADAMS refused to
answer any questions in deposition, based on his right against self-incrimination.
On the morning of trial, with all discovery completed and disclosed by The Florida
Bar, he chose to testify.
Respondent FILTHAUT is a non-equity partner (also referred to as an
"associate") in Adams & Diaco, P.A. Throughout this proceeding, Respondent
FILTHAUT has refused to testify, either in deposition or at trial, based on his right
against self-incrimination.
Melissa Personius is, and at all times pertinent to this matter was, a paralegal
employed by Adams & Diaco, P.A. She worked primarily for Respondent
ADAMS, but was subject to the direction or authority of all the partners, be they
equity or non-equity. At the time of the material events, Ms. Personius lived in
Brandon, a Tampa suburb, with Kristopher Personius, her ex-husband. Ms.
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Personius refused to testify at trial based on her right against self-incrimination.
She gave some testimony to the Pinellas County State Attorney's Office
investigators and signed a short affidavit prior to these proceedings being brought,
but she claimed to have no recollection of many significant portions of the events.
Sergeant Raymond Fernandez was, at all times material to these proceedings, a
Sergeant with the City of Tampa, Florida Police Department. He had been with the
Department for over 18 years, of which he spent the last 15 years on the Traffic
Enforcement Unit. At the time of these events, he was the commander of the
Traffic Enforcement Unit, otherwise known as the DUI Squad. Sergeant Fernandez
was a close personal friend of Respondent FILTHAUT. Sergeant Fernandez
refused to testify at trial based on his right against self-incrimination. Before these
proceedings, however, he provided deposition testimony to investigators from the
Pinellas County State Attorney's Office and testified at various administrative
hearings regarding both the arrest of C. Philip Campbell, Jr., Esq., and his
discharge from the Tampa Police Department.
Brian Motroni, Esq., was an associate attorney with the firm of Adams & Diaco,
P.A. at all times material to this matter. Mr. Motroni provided some information
when he spoke with an investigating attorney for the Thirteenth Judicial Circuit
Grievance Committee. At trial, Mr. Motroni refused to testify based upon his right
against self-incrimination.
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Charles Philip Campbell, Jr., Esq., is a partner in the law firm of Shumaker,
Loop, & Kendrick whose offices are also in the Bank of America Building in
downtown Tampa. At the time of all relevant events, Mr. Campbell was lead
counsel in the Schnitt v. Clem trial before Thirteenth Circuit Judge James D.
Arnold, a high profile case between two radio "shock jock" personalities. Mr.
Campbell represented Todd and Michele Schnitt while Adams & Diaco
represented "Bubba the Love Sponge" Clem and Bubba Radio Network. Mr.
Campbell testified at trial and the Referee found him to be a credible witness.
Jonathan J. Ellis, Esq., is also a partner in Shumaker, Loop, & Kendrick, and, at
all times material to this matter, co-counsel with Mr. Campbell in the Schnitt v.
Clem litigation.
I.
Respondents DIACO, ADAMS, and FILTHAUT, members of
Adams & Diaco, PA, conspired among themselves and with others
to deliberately and maliciously effect the arrest of Mr. Campbell,
an opposing attorney.
THURSDAY, NOVEMBER 29, 2012 - FIRST ATTEMPTED ARREST
The major events that comprise this narrative occurred between the evening
of January 23, 2013, and the afternoon of January 25, 2013. An earlier event,
however, puts them in perspective and reveals a pattern of intentional conduct that
resulted in these proceedings. The first effort to manipulate the arrest of Mr.
Campbell by members of the Adams & Diaco law firm began approximately 60
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days prior to January 23, 2013, and were revealed in a deposition of Sergeant
Fernandez that was taken prior to the filing of these proceedings.
On the evening of November 29, 2012, Respondent FILTHAUT called his
close friend Sergeant Fernandez and said: "There's this guy that works in my
building. He's an attorney. He gets drunk all the time. He goes to Malio's and
drinks it up and then he drives home drunk." Sergeant Fernandez was given the
name "Philip Campbell. " Respondent FILTHAUT did not tell Sergeant Fernandez
that Mr. Campbell was the lead opposing attorney in a five-year-old high-profile
civil action being defended by Adams & Diaco.
Sergeant Fernandez, based upon the information provided by Respondent
FILTHAUT, ordered Officer Michael Lyon of the Tampa Police Department DUI
Squad to stakeout Malio's Steakhouse in downtown Tampa, with specific
instructions to look for Mr. Campbell. Officer Lyon was given Mr. Campbell's
name and a vehicle description. Mr. Campbell was not observed driving that night
and no arrest was made. After 45 minutes, the surveillance was discontinued. A
compilation of recorded and preserved Tampa Police Mobile Data Terminal
("MDT") text communications between the officers of the DUI Squad on the
evening of November 29, 2012, further confirms the effort to look for Mr.
Campbell.
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Respondent ADAMS admitted during trial that he learned of the November
attempt to target Mr. Campbell shortly after it occurred. There was no evidence
that he admonished Respondent FILTHAUT for those actions or made any effort
to prohibit similar acts in the future.
WEDNESDAY, JANUARY 23, 2013 - THE SETUP AND ARREST
The evening's events played out over a five or six hour period beginning
around 5:00 p.m. on January 23, 2013. Following a day in the Schnitt v. Clem trial,
Mr. Campbell walked from his office to Malio's Steakhouse in downtown Tampa
to meet his trial partner, Mr. Ellis, for dinner and drinks.
Ms. Personius had also decided to go to Malio's for drinks after work with
her friend Vanessa Fykes. They arrived at Malio's around 5:00 p.m. and had a
glass of wine. After a short while, they decided to drive to the Fly Bar, a few
blocks away. As they were leaving Malio's, Ms. Personius noticed that Mr.
Campbell was at the bar. When Ms. Personius arrived at the Fly Bar, she contacted
Respondent ADAMS and informed him that Mr. Campbell was at Malio's.
Respondent ADAMS, after notifying Respondent DIACO of the information
received from Ms. Personius, called her back. Following the call from Respondent
ADAMS, Ms. Personius returned to Malio's.
Although she refused to testify at trial, Ms. Personius previously admitted
during the State Attomey's investigation: "I offered-I believe I offered to just go
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back ifthey needed, you know, anything, any other-to see maybe ifhe's still there.
I don't know. Whatever information the police or authorities needed." She also
admitted knowing that"[t]he Police have a contact. " Sergeant Fernandez, in
earlier sworn testimony, admitted that the "contact" that night was his close friend,
Respondent FILTHAUT.
While Ms. Personius was returning to Malio's, Respondent ADAMS, after
discussions with Respondent DIACO, called Respondent FILTHAUT to alert him
that Mr. Campbell was at Malio's. As he had done two months earlier, Respondent
FILTHAUT called Sergeant Fernandez to again encourage him to stakeout Malio's
with the intent of arresting Mr. Campbell for Driving under the Influence. Sergeant
Fernandez testified that he asked Respondent FILTHAUT, "Is that the guy you
called me about before?" Respondent FILTHAUT acknowledged that it was and
told Sergeant Fernandez, "Hey, the attorney that's in my building, he's out
drinking again at night at Malio's." He also told Sergeant Fernandez, "He's going
to drive home again tonight drunk. " Sergeant Femandez told Respondent
FILTHAUT, "Well, we didn't get him last time. We'll sit on him again and see
what he does. " Respondent FILTHAUT again failed to tell Sergeant Fernandez
that Mr. Campbell was the opposing attorney in the much-publicized and ongoing
Schnitt v. Clem trial.
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Sergeant Fernandez assigned a member of his DUI Squad, Officer Joseph
Sustek, to sit outside of Malio's and look for Mr. Campbell's black BMW. Shortly
after 8:00 p.m. that night, Sergeant Fernandez and another member of the DUI
Squad, Officer Tim McGinnis, took up the surveillance and relieved Officer
Sustek. During the evening, Sergeant Fernandez received periodic updates about
what Mr. Campbell was doing inside Malio's by text or voice call from
RespondentFILTHAUT.
While Sergeant Fernandez was setting up his surveillance for Mr. Campbell,
Ms. Personius and Ms. Fykes had returned to Malio's. Ms. Personius took a seat at
the bar next to Mr. Campbell. From about 7:00 p.m. until about 9:45 p.m., she
engaged in conversation with Mr. Campbell, Mr. Ellis, and attorney Michael
Trentalange. She told them that she was a paralegal working for Nathan Carney,
Esq., at the firm of Trenam Kemker. She openly and obviously flirted with Mr.
Campbell, encouraged him to drink, and bought him drinks herself.
While the drinking and conversation were occurring that night, Ms.
Personius managed to carry on a steady series of cell phone texts and calls with
each of the Respondents. For example, between 6:30 p.m. and 9:30 p.m. that night
Ms. Personius either sent or received approximately 19 separate communications
with Respondent FILTHAUT. During that same period, she had approximately 17
communications with Respondent ADAMS, and approximately 11 with
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Respondent DIACO. In the half hour between 9:30 p.m. and 10:00 p.m., the
approximate time Sergeant Fernandez pulled Mr. Campbell and Ms. Personius
over after they left Malio's, Ms. Personius had approximately another 12
communications with Respondent FILTHAUT, 7 with Respondent ADAMS, and 2
with Respondent DIACO. The Florida Bar's Exhibit 59 provides a minute-by-
minute chart of the dozens of cell phone communications that were occurring
between the Respondents and Ms. Personius, as well as those among the
Respondents themselves. The actual substance of those text messages is not
known. If the Respondents' phones still exist, they chose not to produce them. Ms.
Personius disposed of her phone before these proceedings began, and Sergeant
Fernandez previously testified that all his texts were erased when he put some new
software on his phone. It was obvious, however, from the recorded and preserved
Tampa Police MDT text messages between patrol vehicles that night that Ms.
Personius was providing Respondent FILTHAUT with regular updates. He passed
on those updates to Sergeant Fernandez, who in turn, communicated them to
Officers Sustek and McGinnis. At one point, Officer Sustek sent a MDT text to
Sergeant Femandez asking if he was going to be informed when Mr. Campbell left
Malio's. Sergeant Fernandez replied that he was. That exchange was around 8:17
p.m., long before Mr. Campbell had left. It confirmed not only that Sergeant
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Fernandez was being updated, but also that whoever was doing the updating
intended to remain at Malio's until Mr. Campbell decided to leave.
By 9:30 p.m. to 9:45 p.m., Ms. Fykes and Mr. Ellis had left Malio's. Mr.
Trentalange was leaving to make a 9:45 p.m. dinner reservation. During the
evening, Ms. Personius learned that Mr. Campbell had walked to Malio's, did not
have a car there, and that he intended to also walk the few blocks home. That was
not out of the ordinary for Mr. Campbell, as was confirmed by the testimony of
bartender Denise DiPietro, restaurant manager Dina Kuchkuda, Mr. Ellis, and
attorney Michael Trentalange, all of whom the Referee found credible. In fact, Mr.
Trentalange had a specific conversation with Mr. Campbell that night about his
plans for the evening. Mr. Campbell told Mr. Trentalange that he planned to go
home and be in bed around 10:00 p.m. and get up at 2:00 a.m. to work on the next
day's witness testimony for the ongoing jury trial, then in its second week. Mr.
Trentalange had known Mr. Campbell professionally for a number of years and
testified that this was a routine Mr. Campbell regularly followed during jury trials.
Some of the witnesses who observed Ms. Personius that evening testified
that she appeared to be intoxicated. That was certainly the opinion of Ms. Fykes,
who, before leaving, told her not to drive and to call a cab. Mr. Campbell also felt
that she was intoxicated and, as they were leaving, offered to call her a cab. She
told him that her car was in valet parking. Mr. Campbell said he would see if it
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could be kept overnight in the parking garage. Ms. Personius then told Mr.
Campbell that she needed to get to her car. Mr. Campbell took her valet ticket to
the attendant and had the car brought up. Mr. Campbell confirmed with the
attendant that the car could be left overnight.
At that point, Ms. Personius refused to leave her car and insisted that it
needed to be in a secure public parking lot where she could have access to it. Mr.
Campbell tried to convince her to leave the car, but she maintained that it had to be
moved'. Out of frustration, Mr. Campbell agreed to move the car to a lot near his
apartment building and to call her a cab from there. Mr. Campbell fully admitted
that she never asked him directly to drive her car. He chose instead to run the risk
of a two-minute drive as a favor to someone who appeared too impaired to drive
safely. Mr. Campbell was unaware that the self-professed paralegal from Trenam
Kemker was feigning being stranded and, at that point and throughout the evening,
was plotting with the Respondents to have him arrested.
The video of the parking lot area, which Mr. Campbell narrated during his
testimony, shows that these events occurred between approximately 9:40 p.m. and
9:57 p.m. The timing is noteworthy. Cell phone call and text records show that at
¹ In reality, Ms. Personius was easily able to get herself and her car home that
evening without any assistance from Mr. Campbell. Later she was quickly able to
arrange, through her constant contact with the Respondents, for Mr. Motroni to be
dispatched for that purpose. The fact that this alternative was not exercised until
after Mr. Campbell drove into the waiting police stakeout is further confirmation of
their intent to effect his arrest.
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9:28 p.m., Ms. Personius sent a text to Respondent DIACO. Immediately
thereafter, Respondent DIACO made a phone call to Respondent FILTHAUT.
Immediately following that, Respondent FILTHAUT sent a text to Sergeant
Fernandez. One minute later, at 9:29 p.m., Sergeant Fernandez sent a MDT text
message to Officer McGinnis, who was part of the stakeout, which read "leaving
bar now, " referring to Mr. Campbell. Since Mr. Campbell had hardly walked out
into the parking area before this whole exchange, it clearly demonstrates how
diligently Ms. Personius was keeping the Respondents informed about what was
happening. Her information was immediately relayed to the DUI Squad through
Respondent FILTHAUT's communication with Sergeant Fernandez.
When Sergeant Fernandez informed Officer McGinnis that Mr. Campbell
was leaving the bar at Malio's, both officers were under the impression that Mr.
Campbell would be driving his black BMW. Officer McGinnis sent an MDT text
to Sergeant Fernandez which read "blk convertible?" At 9:31 p.m., Sergeant
Fernandez replied "BMW_yes. " At the same time, Ms. Personius was having her
own text exchanges. At 9:32 p.m., she received a text from Respondent
FILTHAUT. At 9:35 p.m., she received a text from Respondent DIACO. At 9:36
p.m., she sent a text to Respondent FILTHAUT. At 9:37 p.m., she got a text back
from Respondent FILTHAUT. At 9:39 p.m., she got another text from Respondent
FILTHAUT. At 9:42 p.m., she got another text from Respondent FILTHAUT.
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Immediately after, she made a 57 second phone call to Respondent FILTHAUT,
which was followed by another text from Respondent FILTHAUT at 9:44 p.m. She
immediately made another phone call to Respondent FILTHAUT, that one lasting
53 seconds. At 9:45 p.m., she sent a text to Respondent FILTHAUT. At 9:48 p.m.,
she got a text from Respondent ADAMS, which was immediately followed by a
call to Respondent ADAMS at 9:49 p.m. that lasted 46 seconds. She then received
a text from Respondent ADAMS at 9:52 p.m. At 9:53 p.m. and 9:54 p.m., she got
texts from Respondent FILTHAUT. During that same minute, she got a text from
Respondent DIACO and sent another to Respondent ADAMS. During these
exchanges, Ms. Personius obviously informed Respondent FILTHAUT that Mr.
Campbell did not plan to leave Malio's in his own vehicle, since he didn't have
one there, and instead would be driving her Nissan. Some or all of this was passed
on to Sergeant Fernandez who, at 9:51 p.m., sent another MDT text to Officer
McGinnis that read "dark Nissan...valet malios." Sergeant Fernandez asked
Officer McGinnis to drive by Malio's to "see ifyou see it" at 9:51 p.m. Officer
McGinnis did so and reported back "female driving " at 9:54 p.m.
Officer McGinnis had been misled into believing a female would be driving
because he had observed Ms. Personius near the driver's door of her car at Malio's
valet stand. However, the Respondents knew that Mr. Campbell would be driving,
because Ms. Personius had told them. It was therefore unnecessary to advise
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Sergeant Fernandez about anything other than which car he was to target. As Mr.
Campbell pulled out of Malio's parking lot at approximately 9:57 p.m. that night,
the Respondents and their employee, Ms. Personius, knew that the trap was set.
Almost immediately after the Nissan left Malio's, Sergeant Fernandez, who
was off duty and driving an unmarked car, pulled Mr. Campbell over for a traffic
stop. He claimed that Mr. Campbell had made an illegal right turn from a through
lane on Ashley Street across a right turn lane and into an intersecting street. No one
else observed this driving. Officer McGinnis arrived immediately thereafter, and
Sergeant Fernandez turned Mr. Campbell over to him for what became a typical
DUI investigation. Mr. Campbell was arrested, handcuffed, and taken to the
County Jail.
Although the law provides that vehicles used in a DUI be impounded,
Sergeant Fernandez, as leader of the unit, was authorized to waive that requirement
if a sober driver was available. He did so after more text messages with
Respondent FILTHAUT. Sergeant Fernandez had already communicated to
Respondent FILTHAUT that he could not release the car to Ms. Personius because
her driver's license was suspended. Phone records show that Ms. Personius, after
several conversations with Respondent ADAMS, called associate Mr. Motroni,
who was dropped off at the scene.
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Mr. Motroni drove Ms. Personius and her car to her home in Brandon.
Waiting for her there, and caring for their two children, was her ex-husband and
then current roommate Kristopher Personius. The Personius's marriage had been
dissolved for seven years, but their relationship continued. At trial, Mr. Personius
testified to the following: when Ms. Personius arrived home she admitted to him in
an excited state that she had participated in setting up Mr. Campbell at the
direction of her employers, specifically Respondent ADAMS and Respondent
DIACO. She told him that the Respondents were looking to set Mr. Campbell up,
that she had been directed to go to Malio's to spy on him and "get him to stay
longer and drink more, " and that Respondent DIACO and Respondent ADAMS
were "going to Adam Filthaut, too, to get the cop in place." Ms. Personius also
said that she had made Mr. Campbell drive and told her ex-husband that she "got
him" and "made him drive my car. " Mr. Personius further testified that Ms.
Personius stated that Respondent DIACO had told her that she would receive a big
bonus and would be his best-paid paralegal. All of these admissions occurred in the
presence of not only Mr. Personius, but also Mr. Motroni who, after driving her car
home, was waiting for a cab. Mr. Motroni refused to testify at trial on Fifth
Amendment grounds.
Credible support for Mr. Personius's account of the evening's events came
from another witness at trial, Lyann Goudie, Esq. Ms. Goudie is a former
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prosecutor and experienced criminal defense attorney in Tampa. After the arrest of
Mr. Campbell and the intense media attention that followed, Mr. and Ms.
Personius were still living together in Brandon when the FBI arrived on the
morning of May 23, 2013, with a search warrant. Several days later, Mr. Personius
was contacted by an FBI representative who wanted to discuss the events of
January 23, 2013. Mr. Personius told his ex-wife about the call, and she told him
not to talk to them. Immediately thereafter, Ms. Personius's attomey, Todd Foster,
who was being paid by Adams & Diaco, arranged for Mr. Personius to consult
with Ms. Goudie. Adams & Diaco also paid Ms. Goudie $2,500 for her
representation of Mr. Personius. Mr. Personius's knowledge of events was
important enough to Adams & Diaco that they paid for an attorney to represent
him before the FBI. Yet, each Respondent failed to disclose Mr. Personius as a
person with knowledge of the events of January 23, 2013, in response to The
Florida Bar's interrogatories during discovery in this matter.
At trial, Ms. Goudie testified that Mr. Personius had waived the
attorney/client privilege regarding her representation of him, and she was free to
answer any questions about their privileged discussions. She then described how
Mr. Personius had come to her in early June 2013, because the FBI wanted to talk
with him. He told her that the publicity regarding his ex-wife's role in the
Campbell matter had hurt his teenage daughters because their unusual last name
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was so recognizable, and he didn't want to get drawn in further. Ms. Goudie
further testified that Mr. Personius related to her the events that occurred when Mr.
Motroni brought Ms. Personius home after Mr. Campbell's arrest on January 23,
2013. Her recounting of his description of the events of that night was consistent
with the testimony Mr. Personius gave at trial.
During Ms. Goudie's consultation with Mr. Personius, he voiced no
animosity toward his ex-wife or her employer. Essentially, he wanted to avoid any
involvement and be left alone. Further, during that consultation, Mr. Personius also
advised Ms. Goudie that he had recorded a video that night on his cell phone that
included his wife's admissions regarding the plan to set up and arrest Mr.
Campbell. Ms. Goudie told him that the recording might be considered illegal if it
was done without the consent of his ex-wife, and that if he was going to share it
with anyone, it should be the FBI. According to allegations contained in motions
filed prior to trial, the recording that Mr. Personius made of his ex-wife on the
night of January 23, 2013, is now in the possession of the FBI. It was not offered
into evidence at the trial and its contents are unknown to the Referee. But the
testimony that Mr. Personius gave at trial, regarding the admissions of his ex-wife
on the night of Mr. Campbell's arrest, is credible not only because it was not
recently fabricated, but also because it was supported by the other credible
evidence and testimony in the case.
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Ms. Personius's active participation in the events surrounding the set up and
arrest of Mr. Campbell essentially ended when Mr. Motroni drove her home that
night in her car. However, before moving on to subsequent events, there are
additional facts regarding her participation that require some comment. The first
fact concerns the state of Ms. Personius's sobriety that night. It was previously
noted that several people commented that she appeared intoxicated during the
evening. That was the impression Mr. Campbell testified he had at the time he
decided to leave Malio's. Regardless of the amount of alcohol she consumed that
night, the evidence clearly shows that Ms. Personius was capably providing the
Respondents with a constant stream of texts and voice calls from the time she first
noticed Mr. Campbell at Malio's through the events that led to his arrest and
thereafter. Ms. Personius was also alert enough regarding what she had said and
done that night to attempt to cover her tracks. Early the next morning, she texted
Nate Carney: "if someone calls looking for me tell them you don't know me or
don 't tell them who I am. " Mr. Carney, who testified at trial, was the attorney at
Trenam Kemker that Ms. Personius falsely told Mr. Campbell and Mr. Ellis she
worked for. The Referee found Mr. Carney's testimony to be credible. Two days
later, Ms. Personius also called and left a message on Vanessa Fykes phone to let
her know that an investigator for Adams & Diaco would be calling her to "prep"
her regarding any questions about the evening's events that she might subsequently
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be asked. Ms. Fykes, after seeing news reports the morning following the arrest,
cut off any further communication with Ms. Personius. Ms. Fykes also refused to
return numerous calls from the Adams & Diaco investigator and those of
Respondent DIACO himself. The Referee also found her testimony regarding these
events to be credible.
When called to testify at trial, Ms. Personius refused to answer every
question that she was asked after giving her name. She claimed her right to remain
silent under the Fifth Amendment. She had also made the same assertion of rights
before Judge Arnold when she was asked about the events of the night of January
23 during the hearing on the Motion for Mistrial in the Schnitt v. Clem case. In
doing so, she subjected herself and the Respondents to the adverse inferences that
are appropriate to impose, given the nature of all the other evidence in this case.
Coquina Investments v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014); Atlas v.
Atlas, 708 So. 2d 296, 299 (Fla. 4th DCA 1998).
Prior to this matter being filed, when Ms. Personius was interviewed by the
Pinellas County State Attorney's Office regarding Mr. Campbell's DUI charge (it
had been transferred from Hillsborough), she admitted her involvement. When she
was questioned regarding her many phone calls and text messages with the
Respondents that evening, however, she consistently denied any recollection.
Given the sheer volume of texts and phone calls and the significance of the night,
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that was simply not credible. In addition, the fact that she continues working for
the Respondents' firm, that she received a $9,000 bonus for 2013, a $6,500 raise,
and a credit card paid for by Adams & Diaco all support the conclusion that her
conduct on the night of January 23, 2013, was known and approved by the
Respondents.
The active participation of all of the Respondents in the effort to effect the
arrest of Mr. Campbell is beyond dispute. Respondent DIACO directed
Respondent ADAMS to call Respondent FILTHAUT when he first learned that
Mr. Campbell was at Malio's that evening. Respondent DIACO was aware that
Respondent FILTHAUT's close relationship with Sergeant Fernandez would result
in the Tampa Police Department's DUI Squad making another special effort to
target Mr. Campbell, as it had attempted in November. Respondent DIACO was
aware that Ms. Personius was drinking with Mr. Campbell at Malio's and that she
was passing on updates regarding their activities to him and the other Respondents.
He was aware that her information was being shared with Sergeant Fernandez on a
regular basis through Respondent FILTHAUT. He was aware that Mr. Campbell
would be driving Ms. Personius's car from Malio's and that the vehicle
information had been provided to Sergeant Fernandez. He maintained constant
contact with the other Respondents throughout the evening as the plan progressed,
and did nothing to discontinue the effort directed at Mr. Campbell's arrest.
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Respondent DIACO was an attorney with supervisory authority over Respondent
FILTHAUT, associate Mr. Motroni, and nonlawyer employee Ms. Personius.
Respondent DIACO failed or refused to properly supervise Respondent
FILTHAUT, associate attorney Mr. Motroni, and nonlawyer employee Ms.
Personius that evening and thereafter.
Respondent DIACO refused to testify for a deposition and at trial on Fifth
Amendment grounds. When questioned by Judge Amold regarding the evening of
January 23 during the Schnitt v. Clem case, he either invoked his right to the Fifth
Amendment, claimed he could not recall conversations or events that occurred less
than 48 hours earlier, or denied any active participation. Respondent DIACO's
memory had improved by the time he filed an affidavit on March 4, 2013, in
opposition to a Motion for New Trial in Schnitt v. Clem. Respondent DIACO
swore that his involvement in the events of the night of Mr. Campbell's arrest
consisted of "respond[ing] to requests for information made by the Tampa Police
Department. " That statement is so misleading and so far from the truth regarding
the known events of that night that it amounts to a deliberate falsehood. The
Referee infers from Respondent DIACO's silence at trial that truthful responses
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would have further demonstrated his complicity in the conspiracy proven by clear
and convincing evidence to exist. Baxter v. Palmigiano, 425 U.S. 308 (1976).2
Respondent ADAMS was also a major participant in the conspiracy to effect
the arrest of Mr. Campbell. The clear and convincing evidence establishes that he
was aware of the November 29, 2012 attempt to arrest Mr. Campbell. He did not
advise Respondent FILTHAUT against using his friendship with Sergeant
Femandez to effect the arrest of Mr. Campbell. Instead, he called Respondent
FILTHAUT early on the evening of January 23, 2013, at the request of Respondent
DIACO, to accomplish a DUI Squad stakeout of Malio's with the specific intent of
seeking Mr. Campbell's arrest. He was aware that Ms. Personius was drinking with
Mr. Campbell at Malio's and that she was passing on updates regarding their
activities to him and the other Respondents. He was aware that her information
was being shared with Sergeant Fernandez on a regular basis through Respondent
FILTHAUT. He was aware that Mr. Campbell would be driving Ms. Personius's
car from Malio's and that the vehicle information had been provided to Sergeant
Fernandez. He maintained constant contact with the other Respondents throughout
the evening as the plan progressed and did nothing to discontinue the effort to
2 The Florida Bar has also cited The Florida Bar v. Garcia, 31 So. 3d 782 (Fla.
2010) to support the proposition that the Referee may impose an adverse inference
against the Respondents as a result of their refusal to testify on Fifth Amendment
grounds. Garcia is an unreported case and the Referee has no access to an opinion
or the record to confirm The Florida Bar's assertion.
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arrest Mr. Campbell. Respondent ADAMS was an attorney with supervisory
authority over Respondent FILTHAUT and nonlawyer employee Ms. Personius.
Respondent ADAMS failed or refused to properly supervise Respondent
FILTHAUT and nonlawyer employee Ms. Personius on that evening or thereafter.
Respondent ADAMS also twice refused to answer any questions regarding
his conduct at depositions scheduled by The Florida Bar during these proceedings.
His counsel maintained, until the morning of trial, that Respondent ADAMS and
the other Respondents would not testify based upon their Fifth Amendment rights
against self-incrimination. On the first day of trial, after Respondent DIACO had
so refused, Respondent ADAMS took the witness stand and indicated that he
would testify. The Florida Bar was unprepared to proceed regarding Respondent
ADAMS, since he had twice before declined to answer any questions in discovery.
The Referee allowed a short recess of the trial for the purpose of permitting The
Florida Bar to depose Respondent ADAMS before he testified.
When he again took the witness stand, Respondent ADAM's testimony was
crafted to admit those facts that he knew from discovery he could not deny and to
present a set of circumstances that put him in the most favorable light possible.
Much of his testimony concemed the content of text messages and phone
communications during January 23-24, 2013, between himself, the other
Respondents, and Ms. Personius - all of which Respondent ADAMS admitted he
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had deleted. His testimony about this unverifiable content defied common sense
and was inconsistent with the other evidence presented at trial. Thus, while
Respondent ADAMS avoided the adverse inference that could be properly
imposed for his refusal to testify, his less-than-credible testimony given at the
eleventh hour did nothing to aid in his defense.
Respondent FILTHAUT's close personal relationship with Sergeant
Raymond Fernandez was the single most important factor that allowed the
Respondents to plot the arrest of Mr. Campbell. Without the trust and long years of
friendship that existed between Respondent FILTHAUT and Sergeant Fernandez,
it seems doubtful that the Tampa Police Department would have devoted the
resources to spend the better part of three hours staking out a bar for one
potentially impaired driver on the unverified "tip" of one citizen. The fact that the
DUI Squad did this, not once, but on two separate occasions is a testament to the
influence Respondent FILTHAUT was able to exert. To accomplish that,
Respondent FILTHAUT betrayed the trust of Sergeant Fernandez by lying to him
regarding Mr. Campbell's habit of drinking and driving. The Respondents
produced no evidence at trial regarding Mr. Campbell's drinking habits. Nothing
was offered to suggest, as Respondent FILTHAUT had assured his friend, that Mr.
Campbell "gets drunk all the time. He goes to Malio's and drinks it up and then he
drives home drunk. " The evidence at trial was just the opposite. Both the bartender
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and the manager at Malio's testified that Mr. Campbell would come in one or two
times a week, have one or two drinks, and walk home to his apartment.
Respondents made no attempt to prove otherwise.
The most important information that Respondent FILTHAUT knew about
Mr. Campbell and the events taking place at Malio's was withheld from his friend.
Sergeant Fernandez was never told that Mr. Campbell was the opposing attomey in
a multi-million dollar lawsuit that Adams & Diaco, P.A. were defending. Nor was
Sergeant Fernandez told that the person inside Malio's who was providing the
information about Mr. Campbell's status was an Adams & Diaco employee who
was buying him drinks while she passed on information to the Respondents. He
learned of Mr. Campbell's position as an opposing attorney the next morning when
the arrest became headline news. Sergeant Fernandez confronted his friend about
failing to share that important fact. Respondent FILTHAUT responded, "Well,
Ray, what's the big deal?" Sergeant Fernandez was later discharged from the
Tampa Police Department as a result.
Respondent FILTHAUT, in addition to misleading his friend in furtherance
of the conspiracy, played an active role in orchestrating the events of January 23,
2013. He maintained regular contact with the other Respondents, Ms. Personius,
and Sergeant Fernandez throughout the evening as the plan progressed, and did
nothing to discontinue the effort directed at Mr. Campbell's arrest. Respondent
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FILTHAUT's immediate and direct connection to the commander of the Tampa
Police DUI Squad allowed him to coordinate the arrest by passing on exactly
where Mr. Campbell was, what he was doing, when he was doing it, and what car
to target when the time came.
Respondent FILTHAUT also twice refused to be deposed regarding the
events surrounding these proceedings and refused to answer any questions at trial,
based upon his right against self-incrimination under the Fifth Amendment. He
specifically refused at trial to respond to a question confirming that he had erased,
secreted, or otherwise destroyed the actual cell phone messages that would
constitute direct evidence of the nature of his communications that night. The
Referee has indulged all the adverse inferences that may permissibly be imposed as
a result. Martino v. Wal-Mart Stores Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003);
Baxter v. Palmigiano, 425 U.S. 308 (1976); Atlas v. Atlas, 708 So. 2d 296, 299
(Fla. 4th DCA 1998); Fraser v. Security and Investment Corporation, 615 So. 2d
841 (Fla. 4th DCA 1993); New Hampshire Ins. Co., v. Royal Ins. Co., 559 So. 2d
102 (Fla. 4th DCA 1990). In addition, the wealth of testimony provided by
Sergeant Fernandez in various forums before these proceedings were commenced
further confirmed that Respondent FILTHAUT's active participation is beyond
dispute.
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Respondent FILTHAUT, through his counsel's opening statement and his
arguments regarding the "guilt phase" and the "sanctions phase" of the trial,
suggested that he was only an associate at Adams & Diaco and that his
participation in the setup and arrest conspiracy was solely the result of following
the orders of his superiors, presumably Respondents DIACO and ADAMS. That
variation of the Nuremburg Defense is only available when the conduct ordered is
"in accordance with a supervisory lawyer's reasonable resolution of an arguable
question of professional duty. " Rule 4-5.2. The Referee finds that using a
nonlawyer employee to set up the opposing attorney for arrest in a multi-million
dollar, high profile jury trial doesn't conceivably fall within that exception.
II.
Respondent DIACO, following an 8:30 a.m. hearing on January
24, 2013, during which all parties agreed to a brief continuance of
the ongoing jury trial, made public statements to the news media
criticizing the conduct of Mr. Campbell and falsely claiming that
Respondent did not agree with the recess of the trial. Respondent
DIACO's comments failed to disclose his own active participation
in the events that resulted in the recess or the participation of
Respondents ADAMS, FILTHAUT, and others.
On the morning of January 24, 2013, Mr. Ellis, Mr. Campbell's co-counsel,
asked Judge Arnold for a recess in the Schnitt v. Clem trial. He proposed giving the
jury the day off and working on jury instructions instead. Mr. Campbell's trial bag
containing all of his notes and witness preparation for that morning's testimony
had been left in the back seat of Ms. Personius's car when the.arrest occurred.
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Judge Arnold had previously planned to recess after the morning session, even
before Mr. Campbell's arrest. In light of the disruption caused by the arrest and
Mr. Campbell's inability to locate his trial bag, counsel for all parties agreed to the
recess as a professional courtesy. It was decided that testimony would resume the
next day. While Mr. Campbell and his partner continued their search for the
missing trial bag, Respondent DIACO appeared outside the courthouse and gave
interviews to the media about the case. These are examples of some of the
statements Respondent DIACO made that appeared later that day as sound bites on
various local television news programs:
"Well, you know, I'm shocked that the case was continued. Ifeel
horrible for this jury that has been sequestered and pulled from the
jobs, their lives, theirfamilies. And so now we have to wait."
"Well, you know, I don't know exactly what thejury has been told,
and, you know, they are supposed to be sequestered and not watching
the news or hearing the reports, but this is front page news now."
"And this is his second time. So it's just -you know, the whole
thing makes me embarrassed to be an attorney, and I'm ashamed of
all this whole process has continued to be a mockery of the system.
But we believe in the system. We believe in the jury, and we're going
to let Bubba's peers decide this case."
"We were prepared for today. We were working last night in
preparation for the trial. And so now we have to wait. The jury has to
wait, and we have to see how this plays out. I don't understand why
his other partners who have been in there every single day ofthe trial,
can't continue this case."
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"I hope he gets help. My partner and Greg Hearing were working
on this trial last night. Phil didn't seem to be doing the same. And now
we're beingpenalized."
"Shocked, shocked, disappointed, sad, sadfor thejury having to be
taken out of their lives another day that this is continued. Two other
partners have been trying this case every single day. I don't
understand why it was continued."
"To his advantage, now he gets a good night's sleep. Now he gets
to prepare his witnesses."
"His last DUI was almost twice the legal limit. He didn't learn his
lesson."
At the time those statements and others of a similar nature were made,
Respondent DIACO knew that his firm and all other counsel had agreed to the
short recess. He also knew, or should have reasonably anticipated, that his
statements would receive a great deal of public exposure in the media. They did.
The next day, partially as a result of those statements, Mr. Ellis moved for a
mistrial in Schnitt v. Clem. Judge Arnold felt compelled to question each of the
jurors to determine if they had seen or heard anything regarding Mr. Campbell's
arrest. One juror had learned of Mr. Campbell's arrest, but Judge Arnold was
satisfied that the trial could go forward. Respondent DIACO offered no evidence at
trial to explain why he made false statements to the news media about the short
stipulated recess of the trial, and there was no explanation for his public "piling
on" of Mr. Campbell. Nor was there evidence presented at trial to justify
Respondent DIACO's efforts to publically criticize and humiliate Mr. Campbell in
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the media when Respondent had full knowledge of the part he and the other
members of his firm played in the arrest. The Referee infers, from Respondent
DIACO's refusal to testify regarding these issues, that his purpose in making those
public statements was to potentially influence any jurors that might have heard
them and to otherwise gain an advantage in the ongoing trial.
III.
On January 24, 2013, Respondents DIACO and ADAMS became
aware that the trial bag belonging to Mr. Campbell had been left
in the car of Adams & Diaco, P.A.'s paralegal Ms. Personius.
Neither Respondent DIACO, Respondent ADAMS, nor Brian
Motroni, another member of the firm who also learned this fact,
made any effort to immediately return Mr. Campbell's property to
him or to advise him that it was in their possession.
On the morning of January 24, 2013, testimony in the Schnitt v. Clem trial
was scheduled to resume at 9:00 a.m. After his release from jail at approximately
6:30 a.m., Mr. Campbell and Mr. Ellis began their search for Mr. Campbell's
missing trial bag. Initially, it was presumed that this would simply involve
contacting Trenam Kemker and retrieving the bag from the car of their paralegal.
Upon inquiring, they learned that there was no paralegal named "Melissa" at
Trenam Kemker. The trial bag was still not located when Mr. Campbell and Mr.
Ellis entered the courtroom for the continuation of the trial. Judge Arnold
considered the circumstances of Mr. Campbell's arrest and was amenable to Mr.
Ellis's Motion for Recess, delaying testimony until the next day. All counsel
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agreed, out of professional courtesy to Mr. Campbell, to give the jury the day off.
Counsel were to remain for a jury instruction conference that morning. After the
morning session, Mr. Campbell and Mr. Ellis went back to their office to continue
the search for the missing trial bag.
Between 10:00 p.m. on January 23, 2013, and approximately 5:00 p.m. on
January 24, 2013, Mr. Campbell's trial bag. containing his notes and witness
preparation material was out of his possession. Mr. Ellis and Mr. Campbell did not
discover who had possession of the bag until around 4:00 p.m. on January 24.
During that 19-hour period, the bag was in the sole possession of members of the
Adams & Diaco firm or their employees.
The evidence regarding who possessed the bag, for how long, and what was
done with it was derived almost exclusively from four sources. First, there was
testimony from Respondent DIACO, Ms. Personius, and associate Mr. Motroni at a
hearing on a Motion for Mistrial before Judge Arnold on the afternoon of January
25, 2013. Secondly, there was testimony from Ms. Personius given on May 23,
2013, during the DUI investigation. Thirdly, there were statements made by Mr.
Motroni before Richard Martin, Esq., the investigating member to the Thirteenth
Circuit Grievance Committee on April 30, 2014. Finally, though Respondent
DIACO, Ms. Personius, and Mr. Motroni each refused to testify at trial regarding
this matter on Fifth Amendment grounds, there was the trial testimony of
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Respondent ADAMS. His testimony, however, was given after twice refusing to
answer questions at scheduled depositions and after all other discovery was
completed and disclosed. In the testimony prior to trial and at the trial itself (in
regard to Respondent ADAMS only), the account of the possession and activity
surrounding Mr. Campbell's trial bag was consistent. Mr. Personius also confirmed
some aspects of the saga involving the discovery of the bag and its eventual return,
although it is difficult to ascertain whether his knowledge was first hand or as a
result of what Ms. Personius told him. The following is their account, pieced
together from the various sources in the record and at trial.
The morning after Mr. Campbell's arrest, Ms. Personius was told not to
come into the office. Around noon, Ms. Personius claimed she discovered Mr.
Campbell's briefcase on the back seat of her car and called Respondent ADAMS to
tell him. Respondent ADAMS saying he was too busy to deal with it, told
Respondent DIACO about it. Respondent DIACO told him that he would take care
of it, and tasked Mr. Motroni with retrieving the briefcase. The pass card records
for the garage indicated that Mr. Motroni's car left the Bank of America building at
1:46 p.m.
Mr. Motroni claimed that upon arriving at the Personius home, he
discovered that the briefcase was a large trial bag. Mr. Motroni called Respondent
DIACO at 2:07 p.m. and was instructed to bring the trial bag to the Adams &
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Diaco offices. The pass card records indicate that he re-entered the building's
parking garage at 2:19 p.m. The bag remained at the Bank of America building
from then until Mr. Motroni and Respondent DIACO left with the bag at 3:23 p.m.
There was never a logical explanation given why Respondent DIACO, or Mr.
Motroni, or some other member of the firm had not simply walked the trial bag to
the Shumaker, Loop & Kendrick's offices in the same building. Nor was it ever
explained why Mr. Campbell, or anyone at Shumaker, Loop & Kendrick, was not
notified that his trial bag was in the building and that he could come and get it.
Instead, Respondent DIACO, along with Mr. Motroni, drove the bag back to Ms.
Personius's residence and left it with her to return. Respondent DIACO's said he
took the bag back to her residence to question her about whether she had looked in
the bag. Why he could not have just questioned her over the phone was never
explained. Once Respondent DIACO and Mr. Motroni had driven the bag back to
Ms. Personius's home, she was instructed to transport the bag back to the Bank of
America building by cab and to see that it was delivered to a security officer in the
lobby. The obvious intent was to have the bag returned anonymously. The
evidence suggests that Respondent DIACO believed that Mr. Campbell would not
discover the true identity of Ms. Personius and, therefore, never connect Adams &
Diaco to his arrest. In fact, Respondent DIACO left a telephone message for Mr.
Ellis that aftemoon proposing a meeting of counsel, including Mr. Campbell, to
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discuss settlement. Mr. Ellis returned the call while Respondent DIACO and Mr.
Motroni were driving the trial bag back to Ms. Personius's home. Respondent
DIACO made no mention of his possession of the trial bag during that telephone
conversation.
After leaving the trial bag with Ms. Personius, Mr. Motroni and
Respondent DIACO returned to their office in the Bank of America building, re-
entering the parking garage at 4:21 p.m. Shortly before that time, Ms. Personius's
true identity had been discovered. While driving back to the office, Respondent
DIACO received another phone call from Mr. Ellis. Mr. Ellis confronted
Respondent DIACO with the information that the identity of Ms. Personius was
known and that she had possession of Mr. Campbell's trial bag. Respondent
DIACO then told Mr. Ellis that the trial bag would be returned to the Bank of
America building lobby. Mr. Ellis insisted that it be returned directly to the offices
of Shumaker, Loop & Kendrick.
Sometime later, Ms. Personius took a taxi back to the Bank of America
building, brought the bag into the lobby, and had the cab driver deliver it to
Shúmaker, Loop & Kendrick at about 5:15 p.m. By their own account,
Respondents ADAMS and DIACO were in possession of Mr. Campbell's trial bag
or knew that one of their employees had possession of it for over four hours.
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Neither of them made any effort to contact Mr. Campbell or his firm to advise
them of that fact. It was not returned until Mr. Ellis demanded it.
IV.
The actions of the Respondents, as set out above, and subsequent
efforts to cover up or otherwise destroy evidence of those actions,
were intended to disrupt, unfairly influence, and/or otherwise
prejudice the tribunal, the administration of justice, opposing
attorney Mr. Campbell and/or opposing parties in ongoing
litigation in which the Respondents' law firm was engaged.
Even before Respondents became aware that the identity of Ms. Personius
had been discovered, they began to withhold, destroy, or otherwise secrete the
direct evidence of their involvement in Mr. Campbell's arrest. The first indication
of the Respondents' efforts. to hide their participation was their refusal to notify
Mr. Campbell that they were in possession of his trial bag on the day following the
arrest. Another example occurred later that afternoon, when Mr. Ellis's process
server was locked out of the Adams & Diaco offices, even though there were
obviously people working inside. Mr. Ellis, Mr. Campbell's partner, was
attempting to subpoena Respondent DIACO for a hearing before Judge Arnold the
next moming, January 25, 2013. The hearing concerned Shumaker, Loop &
Kendrick's motion for mistrial of the Schnitt v. Clem case. The motion was based
upon the Respondent's possession and retention of Mr. Campbell's trial bag and
the false and inflammatory comments made by Respondent DIACO to the media
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the morning after Mr. Campbell's arrest. The subpoena also demanded that
Respondent DIACO produce his cell phone at the hearing.
Although the process server was locked out of the Adams & Diaco offices
the day before, he was able to serve the Respondent through his wife early the next
morning, January 25, 2013. Regardless, Respondent DIACO failed to appear at the
morning hearing on that date. He had already hired counsel to appear on his behalf
and move for a protective order. Judge Amold commented at trial that his
immediate concern was the exposure the jury may have had to all the publicity
surrounding Mr. Campbell's arrest, rather than Respondent DIACO's disregard of
the subpoena. The Judge did, however, insist that Respondent DIACO appear for a
continuation of the Motion for Mistrial in the afternoon. Respondent DIACO
appeared, but without his cell phone. When questioned about whether he had any
conversations with Ms. Personius or Respondent FILTHAUT on the evening of
Mr. Campbell's arrest, less than 48 hours earlier, Respondent DIACO replied that
he couldn't remember. When asked who his cell phone carrier was, he said he
didn't know. Respondent DIACO's obvious lies to Judge Arnold demonstrate the
lengths to which he was willing to go to avoid discovery of evidence of his
participation in the plot, which could have led to a mistrial of Schnitt v. Clem. Ms.
Personius appeared at the same hearing and testified regarding the trial bag saga,
but when questioned about whether she had been asked to meet and buy drinks for
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Mr. Campbell, she too refused to testify on Fifth Amendment grounds. By that
afternoon, Ms. Personius also had her own counsel, paid for by Adams & Diaco,
and Respondent DIACO was represented by two attorneys, one for civil and
apparently one for criminal liability. In order to complete the trial, Judge Arnold
put a moratorium on discovery regarding the Motion for Mistrial which remained
in effect until February 5, 2013. As a result, Mr. Campbell and Shumaker, Loop &
Kendrick were unable to take steps to obtain the cell phone records or message
transcripts from the phones of all the Respondents, their employees, or Sergeant
Fernandez. All the Respondents had been provided with notices to preserve that
data. Since then, all of the participants in the conspiracy to arrest Mr. Campbell
have destroyed or secreted the cell phones and/or the important objective evidence
they contained. Respondent ADAMS, Ms. Personius, and Sergeant Fernandez have
all admitted erasure or destruction directly. Respondent ADAMS admitted that all
the Respondents and Ms. Personius had turned their phones over to attorney Lee
Gunn, but Respondent ADAMS refused to say why, claiming attorney-client
privilege. At trial, both Respondent DIACO and Respondent FILTHAUT refused
to answer any questions about the destruction of their cell phone messages and are
subject to the adverse inference that they too have deliberately destroyed them. The
cell phone messages on the Respondents' phones from the night of Mr. Campbell's
arrest are the only objective evidence that could speak to their incrimination or
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exculpation. The fact that they were erased, destroyed, or that the Respondents
failed to produce them, strongly infers that they did not contain anything
exculpatory.
Finally, the Respondents failed to offer any credible justification for their
two-month effort to have Mr. Campbell arrested. Respondents' counsel suggested
that the Respondents were motivated by a strong desire to keep intoxicated drivers
off the streets. Although unsupported by evidence, such motivation would seem
more plausible if it had not knowingly been the Respondents' own employee
buying Mr. Campbell drinks and presenting him with the automobile to drive. It
would also have appeared more believable if that employee had not been funneling
information about Mr. Campbell directly through Respondents to waiting police
surveillance. The Referee was presented with no competent evidence that would
support any credible motive, except that the Respondents sought to gain some
advantage in the ongoing civil case brought by Mr. Campbell's client. Respondent
DIACO's affirmative efforts to propose settlement discussions with Mr. Ellis and
Mr. Campbell before the identity of Ms. Personius was discovered further supports
this finding.
Another argument suggested that Respondents should not be responsible for
Mr. Campbell's decision to drink and drive that night. The argument's logic being
that Mr. Campbell's decision to drive was an intervening independent event that
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broke the chain of causation leading from their actions to his arrest. The argument
has no merit. The acts of the Respondents on January 23 were not unethical
because they ultimately resulted in Mr. Campbell's arrest. They were unethical
because they were prohibited acts,.and the Respondents willingly committed them.
Ethical violations are not necessarily dependent upon the existence of harm or
injury. Damage is not an indispensable element, as it might be in a civil case. If
Mr. Campbell had walked away from Malio's valet that night and left Ms.
Personius to her own devices, the Respondents' actions would have been just as
unethical and egregious. The unsuccessful effort to target Mr. Campbell for arrest
on November 29, 2012, was just as much a violation of Rules Governing The
Florida Bar as the successful effort was on January 23, 2013.
Ultimately, the Referee was presented with nothing to suggest that
Respondents' intent was anything other than what the clear and convincing
evidence demonstrates. It was a deliberate and malicious effort to place a heavy
finger on the scale of justice for the sole benefit of the Respondents and their
client. For the Respondents, the harm inflicted on Mr. Campbell, his clients' cause,
Sergeant Fernandez, the legal system, the profession, and the public's confidence
in justice was simply collateral damage.
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Subsequent Events
The DUI arrest of Mr. Campbell was investigated by the State Attorney's
Office for the Sixth Judicial Circuit, after the State Attorney for the Thirteenth
Judicial Circuit recused his office from the case. On July 29, 2013, a nolle prosequi
was filed. Mr. Campbell's arrest was subsequently expunged. Although evidence
of the basis for refusing to prosecute was not adduced at trial, it appears that all of
the statutory elements of a valid entrapment defense existed. Fla. Stat. §777.201.
Following the events of January 23-25, 2013, the Schnitt v. Clem jury trial
was completed. There was a defense verdict. Following the trial, the Plaintiff's
Motion for Mistrial was converted into a Motion for New Trial, and the restriction
on discovery was lifted. Before an evidentiary hearing was held on the alleged
misconduct of Defendant's counsel, the parties entered into mediation and agreed
to a settlement.
After the settlement, the Schnitts discharged Mr. Campbell and the firm of
Shumaker, Loop, & Kendrick from further representation. As of the date of trial,
there was ongoing litigation between Shumaker, Loop, & Kendrick and their
former clients regarding the payment of fees.
The Tampa Police Department, after an administrative personnel hearing,
discharged Sergeant Raymond Femandez from the force. Officer Tim McGinnis
was removed from the DUI Squad.
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Several witnesses at trial, as well as Respondent DIACO's counsel, have
asserted that the United States Attomey for the Middle District of Florida is
conducting a Federal grand jury investigation that is continuing. As of this date, no
Federal criminal charges have been filed against the Respondents or others
regarding the events described above.
III. RECOMMENDATIONS AS TO GUILT
A. Stephen Christopher Diaco - No. 2013-10,735 (13F)
I recommend that the Respondent be found guilty of violating Rule 3-4.3
of the Rules of Discipline of The Florida Bar; and Rule 4-3.4(a); Rule 4-
3.4(g); Rule 4-3.5(c); Rule 4-3.6(a); Rule 4-4.4(a); Rule 4-5.1(c); Rule 4-
5.3(b); and Rule 4-8.4(a), (c), and (d) of Rules of Professional Conduct.
1. Violation: Rule 3-4.3 (Misconduct and Minor Misconduct)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO conspired with Respondents ADAMS and
FILTHAUT, employee Melissa Personius, and Sergeant Raymond
Fernandez of the Tampa Police Department to improperly effect the
arrest of C. Philip Campbell, Esq., and then attempted to cover-up or
otherwise destroy evidence of his participation in that conspiracy
contrary to honesty and justice.
2. Violation: Rule 4-3.4(a) (unlawfully obstruct another party's
access to evidence or other material)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO deliberately obstructed access to or
concealed the trial bag of C. Philip Campbell, Esq.; destroyed and/or
concealed his cell phone and/or its contents, which he knew or should
have known were relevant to a pending or reasonably foreseeable
proceeding; and refused to produce his cell phone or information
about his cell phone provider at the January 25, 2013 hearing, which
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he knew or should have known were relevant to a pending or
reasonably foreseeable proceeding.
3. Violation: Rule 4-3.4(g) (present, participate in presenting, or
threaten to present criminal charges solely to obtain an advantage
in a civil matter)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO conspired with Respondents ADAMS and
FILTHAUT, employee Melissa Personius, and Sergeant Raymond
Fernandez of the Tampa Police Department to improperly effect the
arrest of C. Philip Campbell, Esq., solely to obtain an advantage in an
ongoing litigation.
4. Violation: Rule 4-3.5(c) (conduct intended to disrupt a tribunal)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO conspired with Respondents ADAMS and
FILTHAUT, employee Melissa Personius, and Sergeant Raymond
Fernandez of the Tampa Police Department to improperly effect the
arrest of C. Philip Campbell, Esq., with the intent that it disrupt an
ongoing civil trial.
2Violation: Rule 4-3.6(a) (prejudicial extrajudicial statements
5. Violation: Rule 4-3.6(a) (prejudicial extrajudicial statements
prohibited)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO made statements to the media on January
24, 2013, regarding: his disagreement with the Court granting a
stipulated trial recess; the arrest of C. Philip Campbell, Esq.; and the
work ethic and prior history of Mr. Campbell. All statements were
made with the knowledge that there was a substantial likelihood of
materially prejudicing the ongoing jury trial.
6. Violation: Rule 4-4.4(a) (means that have no substantial purpose
other than to embarrass, delay, or burden)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO deliberately failed to immediately return
the trial bag of C. Philip Campbell, Esq. or notify him or his firm of
the bag's location in order to delay or burden Mr. Campbell in an
ongoing trial.
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7. Violation: Rule 4-5.1(c) (Responsibilities of partners, Managers
and Supervisory Lawyers)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO deliberately conspired with or otherwise
ordered or ratified the conduct of Respondents ADAMS and
FILTHAUT regarding their actions taken to improperly effect the
arrest of C. Philip Campbell, Esq. and/or failed to take remedial action
to avoid or mitigate the foreseeable potential results of those wrongful
actions. Further Respondent DIACO ordered or ratified the conduct of
associate Brian Motroni in concealing the trial bag of Mr. Campbell.
As an attorney with managerial authority, Respondent DIACO was
responsible for the conduct of Respondent FILTHAUT and attorney
Brian Motroni.
8. Violation: Rule 4-5.3(b) (Responsibilities Regarding Nonlawyer
Assistants)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO conspired with, ordered and/or ratified the
conduct of his nonlawyer employee, Melissa Personius, to improperly
effect the arrest of C. Philip Campbell, Esq. and conceal his trial bag;
failed to take appropriate remedial action when he knew that the
consequences of her conduct could be avoided; and failed to make
reasonable efforts to ensure that her conduct was compatible with
Respondent's professional obligations. As an attorney with
managerial authority, Respondent DIACO was responsible for the
conduct of Melissa Personius.
9. Violation: Rule 4-8.4(a), (c), and (d) (Violating or Promoting
Violation of Rules of Professional Conduct; Engaging in conduct
involving dishonesty, fraud or deceit; Conduct in connection with
the practice of law that is prejudicial to the administration of
justice)
The clear and convincing evidence is that STEPHEN
CHRISTOPHER DIACO conspired with Respondents ADAMS and
FILTHAUT, nonlawyer employee Melissa Personius, and Sergeant
Raymond Fernandez of the Tampa Police Department to improperly
effect the arrest of C. Philip Campbell, Esq., and covered up or
otherwise destroyed evidence of his participation in that conspiracy.
Respondent DIACO further engaged in fraudulent, dishonest, or
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deceitful conduct by lying to Judge Arnold on January 25, 2013,
regarding his knowledge of his cell phone provider and his
recollection of discussions or communications with Melissa Personius
and Respondent FILTHAUT on the evening of January 23, 2013. He
further engaged in misleading and deceitful conduct by making public
statements to the news media that were intended to embarrass and
humiliate opposing counsel in regard to his arrest for DUI on the
previous evening without disclosing his own active role in those
events or the role played by the other Respondents, his employee
Melissa Personius, and that of Sergeant Raymond Fernandez. In
addition, this conduct delayed the ongoing litigation and required
Judge Arnold to interview the jurors regarding this trial publicity.
B. Robert D. Adams - No. 2013-10,736 (13F)
I recommend that the Respondent be found guilty of violating Rule 3-4.3
of the Rules of Discipline of The Florida Bar; and Rule 4-3.4(a); Rule 4-
3.4(g); Rule 4-3.5(c); Rule 4-4.4(a); Rule 4-5.1(c); Rule 4-5.3(b); and
Rule 4-8.4(a), (c), and (d) of Rules of Professional Conduct.
1. Violation: Rule 3-4.3 (Misconduct and Minor Misconduct)
The clear and convincing evidence is that ROBERT D.
ADAMS conspired with Respondents DIACO and FILTHAUT,
employee Melissa Personius, and Sergeant Raymond Fernandez of the
Tampa Police Department to improperly effect the arrest of C. Philip
Campbell, Esq., and then attempted to cover-up or otherwise destroy
evidence of his participation in that conspiracy.
2. Violation: Rule 4-3.4(a) (unlawfully obstruct another party's
access to evidence)
The clear and convincing evidence is that ROBERT D.
ADAMS deliberately concealed the trial bag of C. Philip Campbell,
Esq. and destroyed and/or concealed his cell phone and/or its contents,
which he knew or should have known were relevant to a pending or
reasonably foreseeable proceeding.
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3. Violation: Rule 4-3.4(g) (present, participate in presenting, or
threaten to present criminal charges solely to obtain an advantage
in a civil matter)
The clear and convincing evidence is that ROBERT D.
ADAMS conspired with Respondents DIACO and FILTHAUT,
employee Melissa Personius, and Sergeant Raymond Fernandez of the
Tampa Police Department to improperly effect the arrest of C. Philip
Campbell, Esq., solely to obtain an advantage in an ongoing civil
litigation.
4. Violation: Rule 4-3.5(c) (conduct intended to disrupt a tribunal)
The clear and convincing evidence is that ROBERT D.
ADAMS conspired with Respondents DIACO and FILTHAUT,
employee Melissa Personius, and Sergeant Raymond Fernandez of the
Tampa Police Department to improperly effect the arrest of C. Philip
Campbell, Esq., with the intent that it disrupt an ongoing civil trial.
5. Violation: Rule 4-4.4(a) (means that have no substantial purpose
other than to embarrass, delay, or burden)
The clear and convincing evidence is that ROBERT D.
ADAMS failed to immediately return the trial bag of C. Philip
Campbell, Esq. or notify him or his firm of the bag's location in order
to delay or burden Mr. Campbell in an ongoing trial.
6. Violation: Rule 4-5.1(c) (Responsibilities of Partners, Managers,
and Supervisory Lawyers)
The clear and convincing evidence is that ROBERT D.
ADAMS deliberately conspired with or otherwise ordered or ratified
the conduct of Respondents DIACO and FILTHAUT regarding their
actions taken to improperly effect the arrest of C. Philip Campbell,
Esq., and/or failed to take remedial action to avoid or mitigate the
foreseeable potential results of those wrongful actions. Respondent
ADAMS ordered Respondent FILTHAUT to contact Sergeant
Raymond Fernandez of the Tampa Police Department in furtherance
of the effort to effect Mr. Campbell's arrest; Respondent ADAMS
was aware of Respondent FILTHAUT's prior improper conduct and
ratified it. As an attorney with managerial authority, Respondent
ADAMS was responsible for the conduct of Respondent FILTHAUT.
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7. Violation: Rule 4-5.3(b) (Responsibilities Regarding Nonlawyer
Assistants)
The clear and convincing evidence is that ROBERT D.
ADAMS conspired with, ordered and/or ratified the conduct of his
nonlawyer employee, Melissa Personius, to improperly effect the
arrest of C. Philip Campbell, Esq.; failed to take appropriate remedial
action when he knew that the consequences of her conduct could be
avoided; and failed to make reasonable efforts to ensure that her
conduct was compatible with Respondent's professional obligations.
As an attorney with managerial authority, Respondent ADAMS was
responsible for the conduct of Melissa Personius.
8. Violation: Rule 4-8.4(a), (c), and (d) (Violating or Promoting
Violation of Rules of Professional Conduct; Engaging in conduct
involving dishonesty, fraud or deceit; Conduct in connection with
the practice of law that is prejudicial to the administration of
justice)
The clear and convincing evidence is that ROBERT D.
ADAMS conspired with Respondents DIACO and FILTHAUT,
employee Melissa Personius, and Sergeant Raymond Fernandez of the
Tampa Police Department to effect the arrest of C. Philip Campbell,
Esq., and then covered up or otherwise destroyed evidence of his
participation in that conspiracy. In addition, this conduct delayed or
otherwise disrupted the ongoing litigation and required Judge Arnold
to interview the jurors regarding trial publicity produced as a result of
the conspiracy.
C. Adam Robert Filthaut - No. 2013-10,737 (13F)
I recommend that the Respondent be found guilty of violating Rule 3-4.3
of the Rules of Discipline of The Florida Bar; and Rule 4-3.4(a); Rule 4-
3.4(g); Rule 4-3.5(c); and Rule 4-8.4(a), (c), and (d) of Rules of
ProfessionalConduct.
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1. Violation: Rule 3-4.3 (Misconduct and Minor Misconduct)
The clear and convincing evidence is that ADAM ROBERT
FILTHAUT conspired with Respondents DIACO and ADAMS,
employee Melissa Personius, and Sergeant Raymond Fernandez of the
Tampa Police Department to improperly effect the arrest of C. Philip
Campbell, Esq., and then attempted to cover-up or otherwise destroy
evidence of his participation in that conspiracy.
2. Violation: Rule 4-3.4(a) (unlawfully obstruct another party's
access to evidence)
The clear and convincing evidence is that ADAM ROBERT
FILTHAUT destroyed and/or concealed his cell phone and/or its
contents, which he knew or should have known were relevant to a
pending or reasonably foreseeable proceeding.
3. Violation: Rule 4-3.4(g) (present, participate in presenting, or
threaten to present criminal charges solely to obtain an
advantage in a civil matter)
The clear and convincing evidence is that ADAM ROBERT
FILTHAUT conspired with Respondents DIACO and ADAMS,
employee Melissa Personius, and Sergeant Raymond Fernandez of the
Tampa Police Department to improperly effect the arrest of C. Philip
Campbell, Esq., solely to obtain an advantage in an ongoing civil
litigation.
4. Violation: Rule 4-3.5(c) (Conduct intended to disrupt a tribunal)
The clear and convincing evidence is that ADAM ROBERT
FILTHAUT conspired with Respondents DIACO and ADAMS,
employee Melissa Personius, and Sergeant Raymond Fernandez of the
Tampa Police Department to improperly effect the arrest of C. Philip
Campbell, Esq., with the intent that it disrupt an ongoing civil trial.
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5. Violation: Rule 4-8.4(a), (c), and (d) (Violating or Promoting
Violation of Rules of Professional Conduct; Engaging in conduct
involving dishonesty, fraud or deceit; Conduct in connection with
the practice of law that is prejudicial to the administration of
justice)
The clear and convincing evidence is that ADAM ROBERT
FILTHAUT conspired with Respondents DIACO and ADAMS,
employee Melissa Personius, and Sergeant Raymond Fernandez of the
Tampa Police Department to improperly effect the arrest of C. Philip
Campbell, Esq., and then covered up or otherwise destroyed evidence
of his participation in that conspiracy. Respondent FILTHAUT further
engaged in dishonesty, deceit and/or misrepresentation when he failed
to disclose to Sergeant Fernandez that Mr. Campbell was the opposing
attorney in a high profile civil action that was then currently being
defended by the Adams & Diaco law firm. In addition, this conduct
delayed the ongoing litigation and required Judge Arnold to interview
the jurors regarding trial publicity produced as a result of the
conspiracy.
IV. CASE LAW
Before arriving at a recommendation as to the disciplinary measures to be
applied the Referee considered the following case law:
Florida Bar v. Cox, 794 So. 2d 1278 (Fla. 2001); Florida Bar v.
Rotstein, 835 So. 2d 241 (Fla. 2002); Florida Bar v. Korones, 752 So.
2d (Fla. 2000); Florida Bar v. Bern, 425 So. 2d 526 (Fla. 1982);
Florida Bar v. Swann, 116 So. 3d 1225 (Fla. 2013); Florida Bar v.
Doherty, 94 So. 3d 443 (Fla. 2012); Florida Bar v. Klein, 774 So. 2d
685 (Fla. 2000); Florida Bar v. Gardiner, No. SC11-2311, 2014 WL
2516419 (Fla. June 5, 2014); Florida Bar v. Glueck, 985 So. 2d 1052
(Fla. 2008); Florida Bar v. St. Louis, 967 So. 2d 108 (Fla. 2007);
Florida Bar v. Hmielewski,702 So. 2d 218 (Fla. 1997); Florida Bar v.
Riggs, 944 So. 2d 167 (Fla. 2006); Florida Bar v. Ratiner, 46 So. 3d
35 (Fla. 2010).
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V. RECOMMENDATION AS TO DISCIPLINARY MEASURES
TO BE APPLIED
A. Stephen Christopher Diaco - No. 2013-10,735 (13F)
I recommend that Respondent STEPHEN CHRISTOPHER DIACO be
found guilty of misconduct justifying disciplinary measures and that he be
disciplined by:
1. Permanent Disbarment
2. Payment of The Florida Bar's costs in these proceedings
B. Robert D. Adams - No. 2013-10,736 (13F)
I recommend that Respondent ROBERT D. ADAMS be found guilty of
misconduct justifying disciplinary measures and that he be disciplined by:
1. Permanent Disbarment
2. Payment of The Florida Bar's costs in these proceedings
C. Adam Robert Filthaut - No. 2013-10,737 (13F)
I recommend that Respondent ADAM ROBERT FILTHAUT be found
guilty of misconduct justifying disciplinary measures and that he be disciplined by:
1. Permanent Disbarment
2. Payment of The Florida Bar's costs in these proceedings
VI. PERSONAL HISTORY, PAST DISCIPLINARY RECORD, AND
AGGRAVATING AND MITIGATING FACTORS
In recommending sanctions after finding misconduct, the Referee considered
the following factors as to each Respondent:
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a) the duty violated;
b) the lawyer's mental state;
c) the potential or actual injury caused by the lawyer's
misconduct; and
d) the existence of aggravating or mitigating factors.
A. Stephen Christopher Diaco - No. 2013-10,735 (13F)
Prior to recommending discipline pursuant Rule 3-7.6 (m)(1), I considered
the following:
1. Personal History of Respondent
a. Date of Birth - 1968
b. Date Admitted to the Bar - April 25, 19943
2. Duties Violated
The following Florida Standards for Imposing Lawyer Sanctions (Standards)
support the sanction of disbarment:
a. Violations of Duties Owed to the Public
Pursuant to Section 5.11, disbarment is appropriate when:
f) a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation
that seriously adversely reflects on the lawyer's fitness to
practice.
b. Violations of Duties Owed to the Legal System
Pursuant to section 6.11, disbarment is appropriate when a lawyer:
3 Subsequent to the sanctions hearing, the Referee requested biographical
information from each respondent, including education and employment
information. Counsel for Respondents ADAMS and FILTHAUT responded with
the information. Referee received no response from counsel for Respondent
DIACO, but did obtain his year of birth and date admitted to the Bar from The
Florida Bar.
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a) with the intent to deceive the court, knowingly makes
a false statement or submits a false document; or
b) improperly withholds material information, and
causes serious or potentially serious injury to a party, or
causes a significant or potentially significant adverse
effect on the legal proceeding.
c. Violations of Other Duties Owed as a Professional
Pursuant to section 7.1, disbarment is appropriate when "a lawyer
intentionally engages in conduct that is a violation of a duty owed as a professional
with the intent to obtain a benefit for the lawyer or another, and causes serious or
potentially serious injury to a client, the public, or the legal system."
3. The Potential or Actual Injury Caused By the Respondents
Misconduct
a. Wrongful arrest and incarceration of C. Philip Campbell, Esq.;
b. Public humiliation of Mr. Campbell and damage to his professional
reputation;
c. Disruption of ongoing jury trial and tainting ofjury;
d. Discharge of Sergeant Raymond Fernandez from the Tampa Police
Department;
e. Removal of Officer Tim McGinnis from DUI Squad;
f. Dismissal of significant number of pending DUI cases4;
g. Public loss of confidence in lawyers and legal system; and
h. Public loss of confidence in law enforcement.
4 Although The Florida Bar did not adduce any testimony or produce any
documentation regarding the dismissals, a number of the news articles in the
compilation submitted by The Bar during the penalty phase hearing contained
quotations from Tampa Police officials confirming this fact.
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4. The Existence of Aggravating or Mitigating Circumstances
a. Aggravation
The Referee finds the following aggravating factors pursuant to 9.22 of
Standard 9.2:
b. Dishonest or Selfish Motive;
d. Multiple offenses;
f. Submission of false evidence, false statements, or
other deceptive practices during the disciplinary
process;
i. Substantial experience in the practice of law.
b. Mitigation
The Referee finds the following as to mitigating factors pursuant to 9.32 of
Standard 9.3:
a. Absence of prior disciplinary record; and
g. Character or reputation.
Commentary
During the two days of testimony regarding the sanctions to be
recommended, there was ample testimony from multiple witnesses regarding the
generosity of Respondent DIACO, his charitable efforts, public service, and loyalty
to friends and employees. Virtually all of the witnesses professed to have little or
no knowledge regarding the allegations of Respondent's conduct that resulted in
this proceeding.
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At the conclusion of the hearing, Respondent's counsel sought to introduce
an affidavit from the Respondent, presumably expressing remorse and seeking to
take responsibility for the events that led to this proceeding. The Referee refused to
admit the affidavit, although counsel was allowed to proffer it for the record. It was
not read or considered. Respondent DIACO, throughout this proceeding, has
refused to testify under oath regarding anything connected to the events
surrounding these proceedings. He may not shield himself from cross-examination
by invocation of the Fifth Amendment while at the same time seeking to submit
sworn statements supporting mitigation.
Respondent DIACO is an experienced, apparently competent attorney with
20 years in the profession. He and his firm have multiple offices and employ
numerous associates and paralegal staff. Adams & Diaco have major clients and
are, by all appearances, professionally and financially successful.
Against this backdrop, it is all the more disturbing that Respondent DIACO,
one of the firm's managing partners, engaged in actions against a fellow attorney
that were inexplicably egregious, spiteful, and malicious. While Mr. Campbell and
his firm were reeling from the fallout of the Respondents' conspiracy, Respondent
DIACO attempted to leverage the moment to his advantage by proposing to
discuss settlement. There was no evidence presented at trial to support the
suggestion that Mr. Campbell intended to drink and drive on the night of his arrest,
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or that he had a habit of drinking and driving. The clear and convincing evidence
was that Respondent DIACO's intent was to target Mr. Campbell for arrest
because he was opposing counsel in a high-profile case and that it would benefit
his firm and his client.
Respondent DIACO's efforts to exploit the situation did not cease until the
identity of Ms. Personius was ultimately discovered. The inevitable attempted
cover up followed these multiple offenses, including the bizarre travels of Mr.
Campbell's trial briefcase. The cover up effort included false testimony before
Judge Arnold, a false affidavit filed in Schnitt v. Clem, obstruction of service of
process, destruction or secreting of known relevant evidence, and the deliberate
failure to disclose a key witness, Kristopher Personius, during discovery in this
proceeding.
If the cover up had succeeded, Mr. Campbell would have been the attorney
answering charges from The Florida Bar, as well as the State of Florida. This
malicious tampering with another person's personal life and career was not only
unprofessional, it was inexcusable.
Respondent DIACO's many admittedly generous and unselfish acts do not
atone for the multiple aggravated violations he committed. It is the Referee's
recommendation that he be permanently disbarred.
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B. Robert D. Adams - No. 2013-10,736 (13F)
Prior to recommending discipline pursuant Rule 3-7.6 (m)(1), I considered
the following:
1. Personal History of Respondent Robert D Adams:
a. Date of Birth - May 27, 1969
b. Education - University of Florida, B.A. w/Honors, 1991
Stetson College of Law, J.D. w/Honors, 1996
c. Employment - Associate, Harris, Barrett, Mann & Dew,
1996 - 1998; Shareholder Adams & Diaco,
1998 to present.
d. Date Admitted to the Bar - September 26, 1996
2. Duties Violated
The following Florida Standards for Imposing Lawyer Sanctions (Standards)
support the sanction of disbarment:
a. Violations of Duties Owed to the Public
Pursuant to section 5.11, disbarment is appropriate when:
f) a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation
that seriously adversely reflects on the lawyer's fitness to
practice.
b. Violations of Duties Owed to the Legal System
Pursuant to section 6.11, disbarment is appropriate when a lawyer:
a) with the intent to deceive the court, knowingly makes
a false statement or submits a false document; or
b) improperly withholds material information, and
causes serious or potentially serious injury to a party, or
causes a significant or potentially significant adverse
effect on the legal proceeding.
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c. Violations of Other Duties Owed as a Professional
Pursuant to section 7.1, disbarment is appropriate when "a lawyer
intentionally engages in conduct that is a violation of a duty owed as a professional
with the intent to obtain a benefit for the lawyer or another, and causes serious or
potentially serious injury to a client, the public, or the legal system."
3. The Potential or Actual Injury Caused By the Respondents
Misconduct
a. Wrongful arrest and incarceration of C. Philip Campbell, Esq.
b. Public humiliation of Mr. Campbell and damage to his professional
reputation
c. Disruption of ongoing jury trial and tainting ofjury
d. Discharge of Sergeant Raymond Fernandez from the Tampa Police
Department
e. Removal of Officer Tim McGinnis from DUI Squad
f. Dismissal of significant number of pending DUI cases
g. Public loss of confidence in lawyers and legal system
h. Public loss of confidence in law enforcement
4. The Existence of Aggravating or Mitigating Circumstances
a. Aggravation
The Referee finds the following aggravating factors pursuant to 9.22 of
Standard 9.2:
b. Dishonest or Selfish Motive;
c. A pattern of misconduct;
d. Multiple offenses;
f. submission of false evidence, false statements, or other
deceptive practices during the disciplinary process;
i. Substantial experience in the practice of law.
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b. Mitigation
The Referee finds the following mitigating factors pursuant to 9.32 of
Standard 9.3:
a. Absence of prior disciplinary record; and
g. Character or reputation.
Commentary
During the hearing regarding sanctions, several witnesses testified on behalf
of Respondent ADAMS. Affidavits were also introduced on his behalf. All were
supportive of him as a loyal friend, a worthy mentor to young lawyers, and a
generous and competent professional. The Florida Bar conceded that the
Respondent had no prior disciplinary record. None of the Respondent's witnesses
were aware of any specific information about the Respondent's conduct that
resulted in their being called as a character witness.
The Bar did produce one witness to testify in support of an additional
aggravation factor for this Respondent.
Dr. Robert Frankl, D.C. is a chiropractor from Miami Shores. During the
latter part of 2009 through the first few months of 2010, Dr. Frankl was involved in
litigation regarding the collection of fees against Progressive Insurance Company,
represented by Respondent ADAMS. The issue in the case was the reasonableness
of the doctor's fees for treatment that had been billed to Progressive.
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Dr. Frankl testified that a few days prior to trial in the case, two young
women appeared at his office for a consultation appointment. Both women gave
what were later found to be false names, and when asked, each were unable to
provide any identification. Both women claimed to have been injured and in need
of chiropractic treatment. Each woman inquired whether Dr. Frankl would be
willing to discount his normal rate since they each claimed a lack of applicable
insurance coverage. He told them he would not reduce his fees, but was willing to
accept payment over time. Dr. Frankl arranged an appointment for both women the
following week. Neither woman appeared for their respective appointments and
Dr. Frankl never heard from them again.
The week following the consultation with the two women, Dr. Frankl was
surprised to see some blown up photographs of his office in the courtroom during
the Progressive Insurance Company trial. He could not recall anyone coming in to
take the photographs, although they seemed recent since they included a new
freezer that had been purchased a few weeks before the trial. After the trial, Dr.
Frankl remembered the two strange women who appeared at his office without
identification. Using the phone number log on his phone from the women's initial
call for an appointment and the internet, Dr. Frankl was able to locate a picture of
one of the women and learn that she was a paralegal in the Miami office of Adams
& Diaco. He believed that their purpose for visiting him was to lure him into
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committing "insurance fraud" or to otherwise obtain admissions from him
regarding his fee policy that might be used against him in the upcoming trial.
Dr. Frankl has a history of litigating for his fees, as he freely admitted. He
also admitted that he regularly files complaints about attorneys with The Florida
Bar. He did so in this instance, and got a response letter back from a Bar
representative a few days later. He was advised that it was not a proper Bar matter,
and that it would have to be resolved by a civil action. Dr. Frankl was not easily
dissuaded. He then filed a complaint with the Division of Consumer Services of
the Florida Department of Financial Services regarding the actions of Progressive
Insurance Company's counsel and paralegals. In response, Dr. Frankl received a
copy of a response letter from a Progressive representative that was sent to the
Department responding to the complaint. The letter alleged that Respondent
ADAMS did not direct his employees to "present false information in order to
secure evidence against Dr. Frankl at trial; however, it does appear that two non-
attorney employees ofAdams and Diaco did go to Dr. Frankl's office in order to
obtain pictures ofDr. Frankl's office."
The Division took no further action regarding Dr. Frankl's complaint. A few
years later, Dr. Frankl read a newspaper account of the Campbell DUI case and
recognized the Adams & Diaco law firm as the subject of one of his numerous
ethics complaints. He contacted Mr. Campbell and related his experience regarding
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Respondent ADAMS's paralegals that, he was convinced, had attempted to set him
up. His story was picked up by a newspaper reporter and thereafter came to the
attention of The Florida Bar in this matter.
Dr. Frankl's bias was admitted and his credibility regarding the 2010
incident would be suspect, were it not for the admission by Progressive that two
Adams & Diaco employees did appear at his office as he testified. Respondent
ADAMS, who testified at the guilt phase of this proceeding, offered no rebuttal to
Dr. Frankl's serious accusations during the sanctions phase hearing. If, as the
Progressive letter suggests, the only purpose of the two Adams & Diaco employees
visit was to obtain photographs of Dr. Frankl's office interior, then there are
provisions under the rules that provide for it. At the very least, the incident reflects
a willingness to use surreptitious methods to accomplish goals that should have
been addressed through an above-board discovery process.
This incident occurred a little over two years before the events that are the
subject of this proceeding. No other evidence or testimony regarding it was
produced except for copies of the correspondence from Progressive, the letter from
The Florida Bar, and some copies of Dr. Frankl's internet search results. In the
absence of some reasonable explanation, which was not forthcoming during the
sanctions hearing, Dr. Frankl's experience with Respondent ADAM's unorthodox
discovery methods cannot be ignored. His counsel in this matter has argued that
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Respondent's actions in the events that resulted in this proceeding were "aberrant"
or "atypical." Dr. Frankl's unrebutted testimony, confirmed through the
correspondence, suggests otherwise. The incident displays willingness to engage in
a pattem of conduct employing non-lawyer personnel to deliberately misrepresent
their identity to accomplish purposes beyond normal discovery.
The Referee will not reiterate the comments regarding Respondent ADAMS
that were previously set out in the narrative of the events of January 23 - 25, 2013.
Respondent ADAMS' involvement in those events, as demonstrated by the cell
phone call and text records, was extensive. Respondent ADAMS was the first
person Ms. Personius called when she spotted Mr. Campbell at Malio's that night,
and Respondent ADAMS was the last person she spoke to immediately preceding
getting into her car with Mr. Campbell, less than ten minutes before his arrest. She
received a text from Respondent ADAMS less than seven minutes before his arrest
and sent a text back to Respondent ADAMS two minutes later.
Respondent ADAMS, like his co-Respondents, is an experienced, competent
attorney and litigator. His counsel has argued that Respondent suffered a 3-½ hour
"lapse in judgment" and that his "mistakes were spontaneous" and "unplanned."
The record reflects otherwise. The evidence was clear and convincing that
Respondent ADAM's participation in the effort to effect the arrest of Mr.
Campbell was calculated and had no other purpose than to gain some advantage in
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the ongoing Schnitt v. Clem jury trial. Respondent ADAMS had weeks to
contemplate the failed attempt to arrest Mr. Campbell on November 29, 2012, and
the legal, ethical, and moral implications of that attempt. He had weeks to discuss
that effort with the co-Respondents and to exercise his experienced judgment
regarding the propriety and advisability of any similar future efforts. When the
next opportunity arrived, he didn't caution, he didn't object, he didn't "mentor,"
and he didn't hesitate.
The next day, Respondent ADAMS was again the first person Ms. Personius
called when she discovered Mr. Campbell's trial briefcase in her car. Respondent
claimed he was "too busy" to deal with it. When the opportunity came to again
exercise some ethical and moral judgment, he declined and passed it off to
Respondent DIACO.
The cover up followed. He erased his cell phone text messages and for
months refused to testify under oath regarding the events. He too failed to list
Kristopher Personius as a person with knowledge of the events of that night in
response to The Florida Bar's interrogatories. On the morning of trial, he claimed
to have finally realized that his license to practice law might be in jeopardy and
chose to testify.
The Referee recommends that Respondent ADAMS be permanently
disbarred.
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C. Adam Robert Filthaut - No. 2013-10,737 (13F)
Prior to recommending discipline pursuant Rule 3-7.6 (m)(1), I considered
the following:
1. Personal History of Respondent Adam Robert Filthaut
a. Date of Birth - June 16, 1974
b. Education - University of Detroit, B.S., 1996
Thomas M. Cooley Law School, J.D., 2000
c. Employment - Hillsborough County Public Defender's
Office, 2001 - 2003; Adams & Diaco, P.A.,
2003 to present.
d. Date Admitted to the Bar - September 14, 2000
2. Duties Violated
The following Florida Standards for Imposing Lawyer Sanctions (Standards)
support the sanction of disbarment:
a. Violations of Duties Owed to the Public
Pursuant to section 5.11, disbarment is appropriate when:
f) a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation
that seriously adversely reflects on the lawyer's fitness to
practice.
b. Violations of Duties Owed to the Legal System
Pursuant to section 6.11, disbarment is appropriate when a lawyer:
a) with the intent to deceive the court, knowingly makes
a false statement or submits a false document; or
b) improperly withholds material information, and
causes serious or potentially serious injury to a party, or
causes a significant or potentially significant adverse
effect on the legal proceeding.
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c. Violations of Other Duties Owed as a Professional
Pursuant to section 7.1, disbarment is appropriate when "a lawyer
intentionally engages in conduct that is a violation of a duty owed as a professional
with the intent to obtain a benefit for the lawyer or another, and causes serious or
potentially serious injury to a client, the public, or the legal system."
3. The Potential or Actual Injury Caused By the Respondents
Misconduct
a. Wrongful arrest and incarceration of C. Philip Campbell, Esq.
b. Public humiliation of Mr. Campbell and damage to his professional
reputation
c. Disruption of ongoing jury trial and tainting ofjury
d. Discharge of Sergeant Raymond Femandez from the Tampa Police
Department
e. Removal of Officer Tim McGinnis from DUI Squad
f. Dismissal of significant number of pending DUI cases
g. Public loss of confidence in lawyers and legal system
h. Public loss of confidence in law enforcement
4. The Existence of Aggravating or Mitigating Circumstances
a. Aggravation
The Referee finds the following aggravating factors pursuant to section 9.22
of Standard 9.2:
b. Dishonest or Selfish Motive;
c. A pattern of misconduct;
d. Multiple offenses;
f. Submission of false evidence, false statements, or other
deceptive practices during the disciplinary process;
i. Substantial experience in the practice of law.
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b. Mitigation
The Referee fmds the following as to mitigating factors pursuant to section
9.32 of Standard 9.3:
a. Absence of prior disciplinary record; and
g. Character or reputation.
Commentary
Several witnesses testified on behalf of Respondent FILTHAUT during the
sanctions hearing. He was described as a competent professional and a loyal friend.
Respondent has no prior disciplinary record and his character and reputation were
considered excellent.
Respondent's counsel, in his written argument following the hearing on
penalties, argues a number of mitigation factors, but the Referee may not fmd that
they exist based only upon counsel's argument.
The record does not support the remaining mitigating factors urged by
Respondent's counsel. There was nothing to suggest the absence of a dishonest or
selfish motive. There was no evidence of personal or emotional problems.
Negotiating with The Florida Bar for an agreed-upon sanction did not constitute a
display of a cooperative attitude toward these proceedings, especially in light of the
Respondent's refusal to testify and his failure to retain or produce his cell phone
text messages. He certainly has a right to rely on the Fifth Amendment, but doing
so did not amount to cooperation. Likewise, the failure to disclose Kristopher
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Personius as a person with knowledge of the events that led to these proceedings in
response to The Florida Bar interrogatory certainly constitutes the opposite of
cooperation.
As the Referee previously indicated in the narrative of the events of January
23 - 25, 2013, the entire two-month effort to accomplish the arrest of C. Philip
Campbell, Jr., Esq. was dependent upon the unique relationship of trust and
friendship that Respondent FILTHAUT enjoyed with Sergeant Raymond
Fernandez. Without Respondent FILTHAUT's participation, which is amply
confirmed by the record, the plot had virtually no chance of success. His
relationship with Sergeant Fernandez gave him instant access to the efforts of the
entire Tampa Police Department DUI Squad. Respondent FILTHAUT acted as the
conduit for Sergeant Fernandez regarding the updating of events happening inside
Malio's. Respondent FILTHAUT, through his communication with Ms. Personius,
became the eyes and ears of the Tampa DUI Squad. He kept the officers
immediately informed of what was happening inside Malio's, when Mr. Campbell
was leaving, where he was before he left, and what kind of car he would be
driving. For over 3 ½ hours, Respondent FILTHAUT essentially presided over a
police stakeout of his own creation that was totally dependent upon the information
he provided them. That information did not include the fact that Mr. Campbell was
an opposing attorney in the Schnitt v. Clem case, or that an Adams & Diaco
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paralegal, operating under a false identity, was buying him drinks and getting him
to drive when he otherwise would not have.
Respondent's willingness to betray a 15-year friendship and sacrifice the
career and personal freedom of a fellow attorney for the sake of some potential
advantage in an ongoing trial remains stunning. Yet the clear and convincing
evidence leaves no doubt that Mr. Campbell was deliberately targeted solely to
gain that advantage.
Respondent FILTHAUT also had many weeks to contemplate the
professional and ethical propriety of his actions following his first attempt to have
Mr. Campbell arrested on November 29, 2012. He was an experienced lawyer with
13 years in the practice. During any stage of the 3 ½ hours that the Respondents
remained engaged in the effort to improperly effect Mr. Campbell's arrest, any one
of them, including particularly Respondent FILTHAUT, could have called a halt to
it.
As was previously suggested in the narrative, following orders is not a legal
or ethical basis for avoiding personal and professional responsibility for the many
serious violations that the Referee found by clear and convincing evidence were
committed.
The Referee recommends that Respondent FILTHAUT be permanently
disbarred.
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VII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS
SHOULD BE TAXED
A. Stephen Christopher Diaco - No. 2013-10,735 (13F)
The following costs regarding Respondent DIACO were submitted to the
Court in the form of an Affidavit by The Florida Bar and the Respondent has not
objected:
1. Administrative costs (Rule 3-7.6(q)(1)(I)) .........$1,250.00
2. Court Reporter's Fees .........................................$9,108.18
3. Bar Counsel Expenses.........................................$620.27
4. Investigative Costs..............................................$819.47
5. Copy Costs..........................................................$1,350.75
6. Witness Expenses................................................$1,029.61
Total ..........................................$14,178.28
It is recommended that such costs be charged to the Respondent and that
interest at the statutory rate shall accrue and be payable beginning 30 days after the
judgment has become final unless a waiver is granted by the Board of Governors
of The Florida Bar.
B. Robert D. Adams - No. 2013-10,736 (13F)
The following costs regarding were submitted to the Court in the form of an
Affidavit by The Florida Bar and the Respondent has not objected:
1. Administrative costs (Rule 3-7.6(q)(1)(I)).........$1,250.00
2. Court Reporter's Fees .........................................$9,488.56
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3. Bar Counsel Expenses.........................................$620.27
4. Investigative Costs..............................................$819.47
5. Copy Costs..........................................................$1,350.75
6. Witness Expenses................................................$1,029.61
Total ...............................$14,558.66
It is recommended that such costs be charged to the Respondent and that
interest at the statutory rate shall accrue and be payable beginning 30 days after the
judgment has become final unless a waiver is granted by the Board of Governors
of The Florida Bar.
C. Adam Robert Filthaut - No. 2013-10,737 (13F)
The following costs regarding Respondent FILTHAUT were submitted to
the Court in the form of an Affidavit by The Florida Bar and the Respondent has
not objected:
1. Administrative costs (Rule 3-7.6(q)(1)(I)).........$1,250.00
2. Court Reporter's Fees .........................................$9,108.18
3. Bar Counsel Expenses.........................................$620.27
4. Investigative Costs..............................................$819.47
5. Copy Costs ..........................................................$1,350.75
6. Witness Expenses................................................$1,029.61
Total .........................................$14,178.28
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It is recommended that such costs be charged to the Respondent and that
interest at the statutory rate shall accrue and be payable beginning 30 days after the
judgment has become final unless a waiver is granted by the Board of Governors
of The Florida Bar.
/s/ W. Douglas Baird
Honorable W. Douglas Baird, Referee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing Report of Referee has been
sent by U.S. Mail to THE HONORABLE JOHN A. TOMASINO, Clerk, Supreme
Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399; and sent by
email to: THE HONORABLE JOHN A. TOMASINO, Clerk, Supreme Court of
Florida, e-file@ficourts.org; Gregory W. Kehoe, Esq., kehoeg@gtlaw.com,
attorney for Respondent Diaco; Joseph A. Corsmeier, Esq., jcorsmeier@jac-
law.com, attorney for Respondent Diaco; Mark J. O'Brien, Esq.,
mjo@markjobrien.com, attorney for Respondent Filthaut; William F. Jung, Esq.,
wjung@jungandsisco.com, attorney for Respondent Adams; and Jodi Anderson
Thompson, Esq., JThompso@flabar.org, Bar Counsel, The Florida Bar, this 27th
day of August, 2015.
/s/ W. Douglas Baird
Honorable W. Douglas Baird, Referee
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