Does judicial proceeding privilege protect attorney communications made after trial? DeBry v. Godbe Explained

In DeBry v. Godbe, the Utah Supreme Court addressed whether the judicial proceeding privilege protects attorney communications made to the trial court after the close of evidence. This case provides important guidance on the scope and timing of privileged communications in litigation.

Background and Facts

Attorney Mary Lou Godbe represented Robert DeBry in divorce proceedings against his wife, Janice DeBry. During trial, someone reported a death threat against Robert DeBry, allegedly involving his wife. After the close of evidence, while the case was under advisement, Godbe experienced two suspicious incidents: her phone service was mysteriously canceled and a glass door at her home was broken by an apparent projectile. Concerned about potential intimidation related to the pending case, Godbe wrote to Judge Wilkinson describing these incidents and their possible connection to the death threat. Janice DeBry sued Godbe for defamation and intentional infliction of emotional distress based solely on this letter.

Key Legal Issues

The primary issue was whether the judicial proceeding privilege applied to Godbe’s post-trial communication. To establish this privilege, statements must: (1) be made during or in the course of a judicial proceeding; (2) have some reference to the subject matter of the proceeding; and (3) be made by someone acting as judge, juror, witness, litigant, or counsel. The court also addressed whether Godbe’s distribution of the letter constituted excessive publication, which could destroy the privilege.

Court’s Analysis and Holding

The Utah Supreme Court held that the judicial proceeding privilege protected Godbe’s letter. The court emphasized that “judicial proceeding” must be interpreted broadly, covering “every step in the proceeding until final disposition.” The letter was made during an ongoing judicial proceeding since the case remained under advisement. The communication related to the proceeding because it concerned the integrity of the judicial process, particularly given the prior death threat that had already been discussed in court. Finally, Godbe acted within her capacity as both an attorney for a party and an officer of the court. The court found no excessive publication, as the letter was shared only with parties directly involved in the litigation and Godbe’s personal counsel who had advised her to contact the judge.

Practice Implications

This decision confirms that attorneys’ duty to report potential threats to judicial integrity extends throughout the entire litigation process, including post-trial periods before final disposition. The privilege protects good-faith communications about case-related intimidation even when the attorney lacks concrete evidence of wrongdoing. However, practitioners should limit distribution of such communications to necessary participants and clearly acknowledge any speculative nature of their concerns.