Litigation

THREE LAWYERS DISBARRED FOR DUI SCHEME AGAINST OPPOSING COUNSEL!

A cunning plan by lawyers to discredit opposing counsel began in a bar—and ended in their permanent disbarment by the Florida Supreme Court, as reported in the consolidated cases of Florida Bar v. Adams and Florida Bar v. Filthaut, 2016 Fla. LEXIS 1906.

Robert D. Adams, Adam Robert Filthaut, and Stephen Diaco (“respondents”) represented a local disc jockey, “Bubba the Love Sponge” Clem, and his radio station in a civil suit brought by another DJ, whose counsel included Phillip Campbell. On January 23, 2013, after the trial had recessed for the evening, respondents’ paralegal, Melissa Personius, spotted Campbell at a local bar as she was on her way out. She notified Adams and returned to the bar. Meanwhile, Filthaut called police sergeant Raymond Fernandez, a friend, and told him that Campbell was at the bar, often drove home drunk after drinking there, and might drive drunk that evening. In fact, Campbell, who lived within a few blocks of the bar, did not have his car with him; bar employees testified that while he came to the bar once or twice a week, he usually had only a couple of drinks there and walked home.

Personius perched next to Campbell at the bar. She told him her profession, but lied about the firm she worked for. Over the course of the evening she flirted with Campbell and encouraged him to drink; at the same time, she kept herself busy with texts and phone calls to respondents. In turn, they kept in touch with Fernandez.

As the evening wore on, Personius appeared to be feeling the effects of alcohol, and Campbell, who planned to get to bed around 10:00 p.m., offered to call her a cab. Although Campbell learned from a valet that Personius’s car could be kept overnight, Personius insisted that it needed to be moved to a secure parking lot. Eventually, Campbell decided to move the car himself, only to be arrested for DUI by the waiting Fernandez and carted off to jail. Respondents, meanwhile, enlisted an associate attorney to drive Personius and her car to her home, where she boasted to her ex-husband, who was staying with the couple’s children, of the success of the scheme.

Campbell’s troubles did not end when he got out of jail early the next morning. He soon discovered that he had left his trial bag in Personius’s car. He called the law firm that Personius had named as her employer, only to find that she did not work there. He and his counsel went to the court, where the judge granted them a recess. While they continued to search for the trial bag, Diaco spoke to the media about the case, claiming that Campbell’s conduct made Diaco embarrassed to be an attorney.

Meanwhile, Personius informed respondents that she had the trial bag. They retrieved it from her house, but made no effort to return it to Campbell or to inform him of its whereabouts, even though his office was in the same building as theirs; instead, they eventually sent the bag back to Personius’s residence. Only late that afternoon, when Campbell’s co-counsel, having finally learned the identity of Personius’s employer, demanded that respondents return the bag did respondents do so.

Sensing trouble ahead, respondents quickly engaged in the 21st-century equivalent of circling their wagons. When Campbell’s partner sent a process server to subpoena Diaco for a hearing concerning his possession of the trial bag and his statements to the media, respondents locked their office against him. Later, the referee found, all of the respondents, as well as Fernandez and Personius, “destroyed or secreted” their cell phones and the evidence thereon.

A referee recommended that respondents each be permanently disbarred. Each sought review of the report, but Diaco withdrew his petition and was permanently disbarred.

The court rejected the arguments of the remaining respondents. With regard to Filthaut’ s claim that he should not have been found to have violated R. Regulating Fla. Bar 3-4.3, “commission by a lawyer of any act that is unlawful or contrary to honesty and justice,” the court found that not only had Filthaut actively conspired to improperly effect Campbell’s arrest, he had specifically refused to respond to questions confirming that he had destroyed cell phone communications that would constitute direct evidence of the nature of his communications on the night in question.

Both Filthaut and Adams argued that their conduct was not so severe as to warrant that their disbarments be permanent; in other cases where that sanction was ordered, they contended, the attorneys had not shown themselves “amenable to rehabilitation and [were] beyond redemption.” The court noted that although the referee had found mitigating factors for both respondents, good character and reputation and the absence of a prior disciplinary record, Adams had been linked to an incident where two of his paralegals, posing as prospective patients, surreptitiously photographed the office of a chiropractor who had filed suit against Adams’ client. Moreover, Adams knew about a previous attempt by Filthaut to have Campbell arrested.

Unanimously approving the referee’s recommendation of permanent disbarment, the court concluded, “[I]f the misconduct involved in this case is not comparable to that committed in [the cases reviewed by the court], this is in part because the misconduct in this case is unique and essentially unprecedented. . . . 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 . . . and his clients’ case, upon Sergeant Fernandez [who was discharged] . . . , 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.”

As for Bubba the Love Sponge? According to news reports, the case settled.

 Lexis subscribers can access the opinion at: Fla. Bar v. Adams, 2016 Fla. LEXIS 1906 (Fla. Aug. 25, 2016)

Lexis Advance subscribers can find the opinion at: Fla. Bar v. Adams, 2016 Fla. LEXIS 1906 (Fla. Aug. 25, 2016)

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