Three Florida Lawyers Discover How Reporting a Crime Can Be Unethical

DUI_setup

How can you get disbarred for reporting a drunk driver? Three Florida lawyers were up to the task.

Stephen Diaco, Robert Adams and Adam Filthaut were found to have “maliciously” set up the drunken-driving arrest of their opposing counsel in a  high-profile defamation trial, and Judge W. Douglas Baird,  the referee in their legal ethics case,  wrote  that Stephen Diaco, Robert Adams and Adam Filthaut should lose their licenses permanently under the legal ethics standards of the Florida Bar.

In 2013, C. Philip Campbell was representing radio shock jock Todd “MJ” Schnitt in his slander suit against another DJ, “Bubba the Love Sponge” Clem. Clem was represented by the Adams and Diaco law firm. Campbell  left court and went to Malio’s Steakhouse in downtown Tampa, near his home and office. While Campbell was at the eatery, he was spotted by Melissa Personius, a young paralegal who worked for Adams and Diaco.

According to testimony, Personius called her boss, Adams, to report that Campbell was in the restaurant. Then Personius sat next to Campbell and the two bought each other drinks. As the night proceeded, Personius periodically relayed information to Adams. Adams then contacted Diaco and Diaco constacted Filthaut to agree upon next steps. The key was that Filthaut was friends with Sgt. Raymond Fernandez, who was then head of the Tampa police DUI unit, thus was able to sic  the DUI unit on the unsuspecting opposing counsel, who was in the process of being plied with liquor by Adams and Diaco’s attractive paralegal.

When it was time to for the targeted lawyer to leave, Campbell told Personius that she was too tipsy to drive and offered to call her a cab. Personius protested that she didn’t want to leave her car at the restaurant overnight and asked Campbell  if he would move the car for her. “Of course,” he said, nice guy that he is. As Campbell drove her vehicle up the street, he made an illegal turn and was pulled over by Fernandez officers, who were lying in wait. He was arrested and charged with DUI.

As the facts came out, the police dropped the DUI case against Campbell, , and officials launched a federal civil rights investigation of the incident along with the legal ethics complaint against the three lawyers.  (At last report, the civil rights probe was still ongoing.) Sgt. Fernandez lost his job over his involvement in the scheme.

“This malicious tampering with another person’s personal life and career was not only unprofessional, it was inexcusable,” Judge Baird said in his report. He also noted that the three lawyers were not cooperative during the ethics inquiry, either taking the Fifth in response to questions or claiming that they couldn’t remember what happened. (The judge using the refusal to testify against themselves, which is a right enshrined in the Constitution,  to add to their ethics breach is a eyebrow-raising move. Not that I don’t agree that this is one of those situations where one could reasonably, just not constitutionally, infer guilt from taking the Fifth, but cases make it clear that the right is meaningless if you are presumed guilty when you use it. The judge also called junior attorney Filthaut’s claim that he was just following his senior attorneys’ orders a “variation of the Nuremberg Defense.”

I agree with the judge’s recommendation, which was even tougher than the Bar’s recommendation that would have allowed all but Diaco to be reinstated after five years. My question is, what about Personius? She couldn’t be punished. Is she still working at the firm? If she wants to become a lawyer, will she be allowed to do so? Should she be?

For the record, here are the Florida Rules of Professional Conduct violations the judge found, which include efforts to hide or destroy evidence—you know, like Hillary’s deleted e-mails. The judge was very thorough. Here’s the full list:

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 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.S(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.

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.

7. Violation: Rule 4-5.l(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 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 Femandez. In addition, this conduct delayed the ongoing litigation and required Judge Arnold to interview the jurors regarding this trial publicity.

__________________________

Pointer and Facts: ABA Journal 1, 2, 3

 

16 thoughts on “Three Florida Lawyers Discover How Reporting a Crime Can Be Unethical

    • Yes, but since it was the central act and the sine qua non, I think it’s fair, if maybe on the margin. It’s also what interests me most about the case. The guy WAS driving drunk. Moral luck—if it could be shown that the lawyers saved someone from being killed, and that this guy habitually did this, who cares why they set him up?Of course, there was enough other misconduct to sink a battleship…

  1. Somehow I’m not outraged that an intoxicated lawyer was set up by an attractive woman and gets arrested. She was unethical but. . .

  2. The headline had me confused as all hell, but now that I read it, it’s pretty clear that there should also be questions asked of whether the police were complicit in this, that is, did they know about the set-up, or was it an anonymous tip? Because if they knew, he’d have a case for entrapment.

    • It didn’t have to be “the police” (plural) since “The key was that Filthaut was friends with Sgt. Raymond Fernandez, who was then head of the Tampa police DUI unit…”. It sounds like a direct communication, and that Fernandez had the authority, so there was no need to be complicit with any other officer. There was enough evidence of wrongdoing that “Sgt. Fernandez lost his job over his involvement…”.

      My question would be whether Sgt. Fernandez would be liable for further prosecution or whether his testimony at the lawyers’ trial was/would have been sufficient.

    • Would he? Entrapment is when you are induced to do something illegally that you normally would never do. Moreover, the cops may have been aware of the scheme, but were not engaged in setting the trap.

  3. Jack: “The judge using the refusal to testify against themselves, which is a right enshrined in the Constitution, against them is a eyebrow-raising move. Not that I don’t agree that this is one of those situations where one could reasonably, just not constitutionally, infer guilt from taking the Fifth, but cases make it clear that the right is meaningless if you are presumed guilty when you use it.”

    Not really. My understanding is that the assertion of a privilege permits a negative inference IN CIVIL MATTERS. So, yes, they can’t be compelled to incriminate themselves, when life and liberty is not at stake, the refusal to testify CAN be held against you.

    -Jut

    • Most civil libertarians disagree, and so do I. How do you do that? If you claim the 5th, you are saying that the answer might incriminate you, and you refuse to testify against yourself. How would you make a negative inference abut civil guilt that wouldn’t per se involve potential criminal guilt as well?

      • I am not sure I understand your question. That a negative inference is permitted in civil cases would have nothing to do with a criminal case. The rules are different. And, they are separate proceedings. You are certainly not suggesting that they should be able to admit a crime in that civil proceeding and not have such admission used against them in a criminal proceeding, right?

        -Jut

        • I’m suggesting that you can’t both honor the right against self-incrimination and punish someone for invoking it. Lots pf conduct has both civil and criminal penalties. If the civil misconduct becomes a matter of record because a judge decided as a matter of law that the invocation of the 5th helped prove it, then yes, nothing would stop it from being used in a criminal proceeding. How does the 5th have any juice left if you permit that?

  4. Because the rules are different. In a criminal case, I have the right NOT to testify. I have no such right in a civil case. I can be held in contempt if I refuse. An inference permissible in a civil case is explicitly prohibited in a criminal case. And, that applies to other privileges, as well.

    And, no, I don’t think you could enter into evidence in a criminal case the fact that the 5th amendment was invoked in a civil case. First of all, it is hearsay. Secondly, you can’t comment on a Defendant’s failure to testify. I just don’t see how it comes in.

    And, you have different burdens of proof. What a judge infers in a civil matter may not be sufficient under a higher burden of proof.

    And, sneaky lawyers could use that to an advantage. Given the number of crimes that are out there, you can muck up even some of the most mundane aspects of a civil case by invoking the fifth. I have tried. You invoke the 5th amendment; the other side has no idea why, and it’s because the city park closed at 10:00 p.m. and you did not want your client to admit being there when he witnessed the car accident across the street.

    -Jut

    • Hearsay? It’s in the public record! That’s not hearsay, ever.

      My research indicates this is still a gray area, and I’m not surprised. (Thanks for raising it) Interesting analysis here:

      Although in a criminal procedure, the court must instruct the jury that it cannot draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case, Griffin v. California, 380 U.S. 609 (1965), in civil cases, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

      The rule under Baxter is akin to Cicero’s maxim, “Though silence is not necessarily an admission, it is not a denial, either.” That is to say, an opposing party can’t simply point to the silence and claim victory in their civil case, but a court is entitled to draw adverse inferences against the party that “pleads the Fifth.” (Justice Brandeis said: “Silence is often evidence of the most persuasive character.” United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923)). Thus, pleading the Fifth in a civil case in federal court is never helpful, is rarely harmless, and is typically very damaging — indeed, it’s often fatal to the party’s claims or defenses.

      There’s an interesting split among the federal Courts of Appeal as to when and how a party may use the silence in their favor. For example:

      In re Carp, 340 F.3d 15, 23 (1st. Cir. 2003)(“When all is said and done, the trial court has discretion over whether a negative inference is an appropriate response to the invocation of the Fifth Amendment in a particular civil case.”).
      Stichting Ter Behartiging Van de Belangen v. Schreiber, 407 F.3d 34, 55 (2d Cir.2005) (“Even assuming that a jury might draw [an adverse inference from asserting the privilege against self-incrimination], however, we are required at summary judgment to draw all reasonable inferences in favor of the nonmoving party[.]”);
      SEC v. Graystone Nash, Inc., 25 F.3d 187, 192 (3d Cir.1994)(“Because the privilege [against self-incrimination] is constitutionally based, the detriment to the party asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side.”).
      The Ninth Circuit has been particularly active on this front: SEC v. Colello, 139 F.3d 674, 677-78 (9th Cir. 1998) (holding that district court did not err in drawing an adverse inference against defendant based on his Fifth Amendment invocation in a summary judgment proceeding because there was “additional evidence” to support the SEC’s case); Doe ex rel. Rudy-Glanzer v. Glanzer,232 F.3d 1258, 1264-65 (9th Cir.2000)(“The Baxter holding is not a blanket rule that allows adverse inferences to be drawn from invocations of the privilege against self-incrimination under all circumstances in the civil context”); SEC v. Jasper, 678 F. 3d 1116, 1126 (9th Cir. 2012) (“Jasper has no legal support for the proposition that a district court must make its evidentiary rulings and tailor its adverse inference instructions on a “question-by-question basis.” … But Jasper has no warrant for treating every individual question as an “instance where the adverse inference was drawn” under Glanzer. As properly instructed, the jury could have concluded that the sum total of his Fifth Amendment invocations supported the adverse inference against him.”)
      SEC v. Smart, 678 F. 3d 850, Fn 8 (2012) (10th Cir. 2012)(noting the Stichting and Colello split, and deciding it did not need to resolve the conflict)

      When a judge notices misconduct in their court, one tool they have available is the ability to refer matters to the attorney’s state bar association. Can the silence be used against them in a disciplinary proceeding? Well, there’s a case on that in the First Circuit, involving an attorney who fraudulently concealed property during a bankruptcy, then asserted her right against self-incrimination: “While refusal to waive the Fifth Amendment might increase the risk that she would be disbarred, disbarment would not result automatically and without more. Hence, she was not threatened with a penalty within the meaning of [Garrity v. New Jersey, 385 U.S. 493 (1967)] for invoking her Fifth Amendment privilege.”

      Thus, under federal law, a bar association can use the assertion of the Fifth Amendment against an attorney in a disciplinary action, so long as disbarment isn’t automatic, but some state laws preclude their state courts from drawing negative inferences against a party who asserts a privilege and refuses to testify.

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