Lawyers Disbarred For Setting Up Adversary’s DUI Bust

Lawyers Disbarred DUI SetupThree Tampa, FL attorneys have been permanently disbarred for enlisting a paralegal and a police officer to set up opposing counsel for a drunk-driving arrest during a prominent civil trial.

Background

In a feud between Todd “MJ” Schnitt and Bubba “The Love Sponge” Clem[1], “two of Tampa Bay’s most notorious radio shock jocks”, Charles Phillip Campbell represented Schnitt in a multi-million dol-lar defamation suit that alleged that Clem had broadcast disparaging remarks about Schnitt’s wife and children. Clem was represented by Stephen Diaco and Adam Filthaut of Adams & Diaco. The case was covered extensively by local media.

According to court filings, on November, 29, 2012, Filthaut contacted his friend, Sgt. Ray Fernandez, Commander of the Tampa Police Department’s Traffic Enforcement Unit, a/k/a/ The DUI Squad, and told him that Campbell “gets drunk all the time. He goes to Malio’s (Steakhouse) and drinks it up and then he drives home drunk.”

Fernandez assigned an officer to stake out Malio’s, but he didn’t see Campbell, and left after about 45 minutes.

On January 23, 2013, during the trial in Schnitt v. Clem, Adams & Diaco paralegal Mel-issa Personius went to Malio’s, and saw Campbell at the bar as she was leaving. She called attorney Robert Adams to let him know. Adams told his partner, Diaco, and then called Personius, who returned to Malio’s. Adams also told attorney Filthaut that Camp-bell was at Malio’s, and he in turn told Sgt. Fernandez, who sent a patrol car to wait outside of Malio’s for Cambell to drive away.

During the next few hours, from roughly 6:30 PM – 9:30 PM, Personius “openly and ob-viously flirted with Mr. Campbell, encouraged him to drink, and bought him drinks her-self.” She also exchanged nearly 50 text messages and phone calls with Adams, Diaco, and Filthaut, who in turn exchanged texts and phone calls. Further, Filthaut sent texts to Sgt. Fernandez, who texted the officer who was outside of Malio’s.

However, during the evening, Personius found out that Campbell had walked to Malio’s, and was going to walk home.

As they left Malio’s at around 9:30 PM, Campbell offered to call Personius a cab, be-cause he thought she was intoxicated, but Personius said she needed her car, which was in valet parking. Campbell walked her there, and after confirming with the attendant that she could leave her car overnight, urged her to do so. However, Personius insisted that her car had to be left in a secure public lot where she could easily access it. Camp-bell agreed to park it in a lot near his home, and call her a cab, but “almost immediately” after driving Personius’ car away from Malio’s, Fernandez pulled him over, and he was arrested and jailed for a possible DUI[2].

Campbell was released from jail at 6:30 the next morning, January 24th, several hours before testimony was due to resume in Schnitt v. Clem. He had left his trial bag in Per-sonius’ car, and thus called the firm that Personius had told him she worked for, Trenan Kemker. When that firm denied employing her, he went to court without it, and was granted a one-day recess by the judge. Diaco then addressed the media, complaining about Campbell’s behavior.

Later that day, Ellis, Campbell’s co-counsel in Schnitt v. Clem, called Diaco and said they had discovered that Personius worked for Adams & Diaco, and demanded that Campbell’s trial bag be returned immediately.

Ellis and Campbell also moved for a mistrial in Schnitt v. Clem, based on Diaco’s “in-flammatory” comments to the media about Campbell’s arrest, and his firm’s possession of Campbell’s trial bag after the arrest. However, the judge wanted to complete the trial, and once he was satisfied that none of the jurors had been prejudiced by the publicity surrounding Campbell’s arrest, didn’t rule on the Motion for Mistrial.

He did question Diaco about his involvement in Campbell’s arrest at a continuation hearing for the motion the next day, but Diaco, who had ignored a subpoena Ellis had served on him to appear at a hearing that morning, with his cell phone, variously refused to answer, claimed he didn’t know or remember, and denied any active participation. However, a few weeks later, Diaco filed an affidavit in which he stated that his only involvement in the events that led to Campbell’s arrest was “responding to requests for information made by the Tampa Police Department.”

The Judge froze discovery pertaining to the Motion for Mistrial in order to complete the trial, which prevented Campbell, Ellis, and their firm from obtaining phone records and other information from Diaco, Adams, and the others about their involvement in Camp-bell’s arrest.

Schnitt v. Clem was tried, and the jury returned a verdict in favor of Adams & Diaco’s client, Bubbba Clem. Campbell and Ellis then converted their motion for a mistrial into a motion for a new trial, and the judge lifted the stay on discovery.

A mediation was held, and the case was settled, “before an evidentiary hearing was held on the alleged misconduct of Defendant’s counsel.”

After the settlement, Schnitt fired Campbell and his firm, and the parties engaged in a fee dispute.

Sgt. Fernandez, who was unaware that Campbell was opposing counsel to Adams & Di-aco in the ongoing trial, was fired by the Tampa Police Department.

Campbell wasn’t prosecuted for DUI, and his arrest was later expunged.

Adams & Diaco attempted to “rebrand” itself as an insurance defense firm, under the leadership of its other partner, Joseph Diaco, Jr., brother of Stephen Diaco, however, he appears to be currently operating a solo personal injury law practice.

Bar Investigation and Trial

The Florida Bar investigated the incident, and filed separate Complaints against Adams, Filthaut, and Diaco, in June, 2014. The cases were later consolidated.

The attorneys filed a motion for partial summary judgment, but it was denied in May, 2015.

The case was then tried on a bifurcated basis in May (the guilt phase) and August (the sanctions phase), 2015, before Judge Baird, who was appointed as Referee.

At the start of the trial, Diaco volunteered to surrender his law license, if he could apply for reinstatement in five years, but his petition was denied by Florida’s Supreme Court.

He refused to testify at trial or in depositions, under the protections against self-incrim-ination.

Filthaut also refused to testify at trial or in depositions, under the protections against self-incrimination.

Adams refused to answer questions at a deposition under the same protections, but testified at trial.

Personius, the paralegal, answered investigators’ questions, but said she had no recol-lection of many of the events. She refused to testify at trial, under the protections a-
gainst self-incrimination.

However, Kristopher Personius, her ex-husband, who she was still living with on the night Campbell was arrested, testified 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”. It was turned over to the FBI, and not admitted at trial, but his testimony was deemed to be “credible.”

Attorney Lyann Goudie, who Adams & Diaco retained to represent Mr. Personius, also testified at trial, after her client waived attorney-client privilege.

Sgt. Fernandez refused to testify at trial, but answered questions at depositions taken by the Bar’s investigators.

Attorney Charles Phillip Campbell, Adams’, Diaco’s, and Filthaut’s target, testified ex-tensively, including narrating a video of Malio’s parking lot area that ran from 9:40 PM, shortly after he and Personius arrived there after leaving the restaurant, until 9:57 PM, when he drove out of the parking lot in her car.

Findings and Ruling

Among the Referee’s findings:

  • “Diaco, Adams, and Filthaut…conspired among themselves and with others to de-liberately and maliciously effect the arrest of Mr. Campbell, an opposing attorney.” Their “active participation” is “beyond dispute.”
  • Diaco’s affidavit stating that his involvement was limited to responding to requests for information made by the Tampa Police Department “is so far from the truth…that it amounts to a deliberate falsehood.”
  • “All of the participants in the conspiracy to arrest Mr. Campbell have destroyed or secreted the cell phones and/or the…evidence they contained…Adams, Ms. Per-sonius, and Fernandez all admitted erasure or destruction directly…Diaco and Fil-thaut 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 recorded Tampa Police text messages between patrol vehicles that evening showed that “Ms. Personius was providing Respondent Filthaus with regular up-dates. He passed (them) onto Sergeant Fernandez, who in turn communicated them to (his) officers…”. For example: At “9:28 PM, Ms. Personius” texted Diaco, who “immediately” called Filthaut, who “immediately” texted Fernandez. At “9:29 PM”, Fernandez texted one of his officers outside of Malio’s that Campbell was “leaving bar now”.
  • “No competent evidence (was presented) that would support any credible motive, except that Respondents sought to gain advantage in Schnitt v. Clem… Respond-ents intent was…a deliberate and malicious intent to place a heavy finger on the scale of justice for the sole benefit of Respondents and their client.”

The Referee recommended that Adams, Diaco, and Filthaut be found guilty of multiple violations of the Rules of Discipline of The Florida Bar, including “misconduct and minor misconduct”, “unlawfully (obstructing) another party’s access to evidence”, “(presenting)…criminal charges solely to gain advantage in a civil matter”, “conduct intended to dis-rupt a tribunal”, and “Violating or Promoting Violation of the Rules of Professional Con-duct; Engaging in conduct involving dishonesty, fraud or deceit…”

The Referee’s recommended discipline was that all three attorneys be permanently dis-barred, and reimburse the Florida Bar over $14,000 apiece in costs.

Appeal

All three attorneys appealed the Referee’s decision to the Florida Supreme Court. How-ever, Diaco dropped his appeal before the Court heard the matter, and was permanently disbarred in January, 2016. He was also ordered to reimburse the bar $14,178 for costs.

Adams and Filthaut’s lawyers didn’t contest the Referee’s factual findings. However, they argued that the punishment was disproportionate to the misdeeds, and both should be disbarred with a chance to regain their licenses.

The court acknowledged that it had a history of imposing permanent disbarment only in cases where “patterns of continuing egregious and unrepentant misconduct” show the attorney “is not amenable to rehabilitation and is beyond redemption.”

According to the Referee’s report, neither Adams nor Filthaut had a prior disciplinary record. However, the court ruled that “the misconduct in this case is unique and essen-tially unprecedented, and “among the most shocking, unethical and unprofessional as has ever been brought before this court.”

It approved the Referee’s recommendations that Adams and Filthaut be permanently disbarred, and reimburse the Florida Bar over $14,000 apiece in costs.

Campbell’s attorney said “the opinion is simply blistering and condemns in no uncertain terms the despicable conduct of Diaco, Adams and Filthaut. Their legal careers are now officially over and deservedly so.”

Filthaut’s lawyer said he wasn’t surprised by the court’s decision. “It was a very difficult case from the very beginning.”

He added that his client was “very disappointed, but he has moved on and is actually very happy” in his current endeavor, operating an auto-glass business.

Notes

[1] Clem, Daico & Adams’ client, is the same Clem whose ex-wife was videotaped hav-ing sex with wrestler Hulk Hogan. Gawker posted the videotape on its website, which led Hogan to sue it and its parent, Gawker Media. A jury awarded him $140M, which result-ed in Gawker ceasing publication, and Gawker Media declaring bankruptcy. Broadcast-er Univision bought Gawker Media in a bankruptcy auction.

[2] In No Setup In Adams & Diaco DUI Case, the writer claims that “Campbell reportedly consumed five vodka on the rocks (which is a shot and a half of vodka in each drink be-cause there is no mixer added to the cocktail. This is shown as an upcharge on his re-ceipts for each vodka drink he consumed) and one shot on his own.”

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About Curtis Cooper

Curtis Cooper is principal of Lawyers Insurance Group – Broker For Great Law Firms, which helps attorneys optimize their malpractice coverage. Contact him by phone: (202) 802-6415, or email: ccooper “at” lawyersinsurer.com.