The Florida Supreme Court set a new standard last week for out-of-court speech by attorneys and suggested that telling people an opposing party used prostitutes to get business may cross the line.
In a Broward County case that ended in a 4-3 split decision, the Supreme Court examined a lawsuit where the owner of Donovan Marine Inc. accused a competitor, Daniel Delmonico of MYD Marine Distributor Inc., of hiring prostitutes to attract new business clients.
Delmonico filed a defamation suit against Donovan Marine Inc. and owner Tony Crespo, who retained Arthur Traynor Jr., an Akerman Senterfitt partner in Miami.
Traynor allegedly told people, including two of Delmonico's ex-wives and business clients, that he was being "prosecuted for prostitution." MYD claimed it lost exclusive rights to distribute a particular line of marine paint products because of Traynor's comments, and Delmonico sued Traynor for defamation.
The decision puts Florida attorneys on notice that they have to be careful to avoid defaming an opposing party out of court, said Bruce Rogow, a Fort Lauderdale attorney who represented Delmonico before the Supreme Court.
"There is a difference between interviewing a witness to find out what they know and telling a witness something that is false," Rogow said.
The opinion examined the limits of absolute immunity, a doctrine that holds attorneys conducting discovery are free from liability when questioning witnesses on matters relevant to a client's case.
The opinion written by Justice Barbara Pariente reversed a June 2010 decision of the Fourth District Court of Appeal and relied on the dissent of Fourth District Judge Martha Warner for its conclusion.