Florida Bar v. Adams (198 So. 3d 593, 2016)

PER CURIAM.

We have for review a referee’s report recommending - that Robert D. Adams and Adam' Robert Filth'aut -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.

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 im 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, 2016 WL 374277 (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. In January 2014, Adams & Diaco, P.A. was defending a radio network and one of its disc jockeys, “Bubba the Love Sponge” Clem, in a civil suit. Opposing counsel included attorney Phillip Campbell, who represented another disc jockey named Todd Schnitt. Schnitt brought, the action against Clem. The lawsuit was hotly Contested for over five years and received substantial media coverage in the Tampa area. On the evening of January 23, 2013, while the trial was in recess for the night, Campbell and his 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.

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

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

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

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

The 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.

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. 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 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 caseláw 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 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. 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 con-elude 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 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 ‘[ujnless 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 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. Fil-thaut 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.

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. Bair 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 thé 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 the amount of $14,558.66, and from Adam Robert Fil-thaut 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.

APPENDIX

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

THE FLORIDA BAR, Complainant,

v.

STEPHEN CHRISTOPHER DIACO, Respondent.

THE FLORIDA BAR, Cpmplainant,

v.

ROBERT D. ADAMS, Respondent.

THE FLORIDA BAR, Complainant,

v.

ADAM ROBERT FILTHAUT, Respondent.

Supreme Court Casé

No. SC14-1052

The Florida Bar File

No. 2013-10,735 (13F)

Supreme Court Case

No. SC14-1054

The Florida Bar File

No. 2013-10,736 (13F)

Supreme Court Case

No. SC14-1056

The Florida Bar File

No. 2013-10,737 (13F)

REPORT OF THE REFEREE

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 McGra-dy, 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. and Respondent FILTHAUT was represented by Mark J. O’Brien, Esq. The Florida Bar was represented by Jodi A. Thompson, Esq., Sheila Turna, 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 (13F); No. 2013-10,736 (13F); 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.

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 Taftpa, 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. 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. Mo-troni refused to testify based upon his right against self-incrimination.

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, E$q., 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 days pri- or 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 FIL-THAUT 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 FIL-THAUT, 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.

Respondent ADAMS admitted during trial that he learned of the November attempt to target Mr. Campbéll 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. Personi-us 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 DIAOO 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 Attorney’s investigation: “I offered — I believe I offered to just go back if they needed, you know, anything,-any pther — to see maybe if he’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 FIL-THAUT 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 Fernandez told Respondent FIL-THAUT, “Well, we didn’t get him last time. We’ll sit on Mm again and see ivhat 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.

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 Respondent FILTHAUT.

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 Trenta-lange. She told them that she was a parar legal 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. Perso-nius 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 Respondent DIA-CO. 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 DÍACO. The Florida Bar’s Exhibit 59 provides a minute-by-minute chart of the dozens of cell phone communications that were oc-, curring 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 Fernandez 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 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. Trenta-lange 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. Trenta-lange 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-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 h Out of frustration, Mr. Campbell agreed to move the ear 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 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 “bile 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 FIL-THAUT. At 9:42 p.m., she got another text from Respondent FILTHAUT. 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 McGin-nis that read' “dark Nissan ... valet mal-ios,” Sergeant Fernandez asked Officer McGinnis to drive by Malio’s to “see if you 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 diiver’s door of her car at Malio’s valet stand. However, the Respondents knew that M^. Campbell would be driving, because Ms. Personius had told them. It was therefore unnecessary to advise 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. Per-sonius, 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 FIL-THAUT 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.

Mr. Motroni drove Ms. Personius and her car to her hbme 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. Perso-nius 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 hot 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 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 attorney, 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 was so recognizable, and he didn’.t want to get drawn in further. Ms. Goudie further testified that Mr. Per-sonius 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 inyolvement 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. Gou-die 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 Jánu-ary 23, 2013, is now in' the ‘ possession of the FBI. It was nbt 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 ease.

Ms. Personius’s active participation in the events surrounding the sét 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 Ñate 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 be asked. Ms. Fykes, after seeing news reports the morning following the arrest, cut off any further communication with Ms. Personius. Ms. Fyk-es 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. Per-sonius 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 Pi-nellas 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, 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 FIL-THAUT’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 FIL-THAUT. 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. Respondent DIACO was an attorney with supervisory authority over Respondent FILTHAUT, associate Mr. Motroni, and nonlawyer employee Ms. Personius. Respondent DIA-CO 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 Arnold 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 DIA-CO swore that his involvement in the events of the night of Mr. Campbell’s arrest consisted of “responding] 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 DIA-CO’s silence at trial that truthful responses would have further demonstrated- his complicity in the conspiracy proven by clear and convincing evidence to exist. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).

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 Fernandez to effect the arrest of Mr. Campbell. Instead, he called Respondent FIL-THAUT 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 arrést. 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 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 FIL-THAUT and nonlawyer employee Ms. Per-sonius 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 concerned the content of text messages and phone communications -during January 23-24, 2013, between himself, the other Respondents, and Ms. Personi-us — all of which Respondent ADAMS admitted he 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 Respondént 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 FIL-THAUT 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 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 attorney 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 FIL-THAUT’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 1261 (Fla. 4th DCA 2003); Baxter v. Pal-migiano, 425 U.S. 308, 96 S.Ct. 15.51, 47 L.Ed.2d 810 (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 conirhenced further confirmed that Respondent FIL-THAUT’s active participation' is beyond dispute.

Respondent FILTHAUT,. through his counsel’s opening statement and his arguments regarding the “guilt phase” and the “sanctions phase” of the trial, suggested that Ke 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 Nurem-bdrg 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 multimillion 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 DIA-CO’s comments failed to disclose his own active participation in the events that resulted in the recéss 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 Sehnitt 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. 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. I feel horrible for this jury that has been sequestered and pulled from the jobs, their lives, their families. And so now we have to wait.”

“Well, you know, I don’t know exactly what the jury 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 toda/y. 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 of the trial, can’t continue this case.”

“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 being penalized.”

“Shocked, shocked, disappointed, sad, sad for the jury 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' f