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The Absolute Judicial Privilege

Larsen & Rico is an experienced business litigation firm in Salt Lake City that provides effective courtroom representation to clients throughout Utah.

The Absolute Judicial Privilege

Claims made in a lawsuit may harm a defendant’s reputation, especially where the defendant is a professional, such as a lawyer or an accountant. The judicial privilege bars claims based upon allegations in a lawsuit, as well as statements made before the litigation is initiated, such as in a demand letter, as long as they relate to the judicial proceedings.

Under Utah law, “[a]n absolute privilege is granted to participants in judicial proceedings.” Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997). This judicial privilege shields litigants from potential liability for defamation and encourages candor before the court. Id. The “judicial proceeding privilege extends not only to defamation claims but to ‘all claims arising from the same statements.’” DeBry v. Godbe, 1999 UT 111, ¶ 25, 992 P.2d 979, 986 (1999) (citing Price, 949 P.2d at 1258) (emphasis added). “Three elements must be satisfied for allegedly defamatory statements to qualify for an absolute privilege: (1) The statement must have been made during or in the course of a judicial proceeding; (2) the statement must have some reference to the subject matter of the proceeding; and (3) the statement must have been made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.” Price, 949 P.2d at 1256.

Where the injury to its reputation flows from being exposed to legal claims, it follows that these are claims arising from the participation in this judicial proceeding and, accordingly, are barred by the doctrine of judicial privilege. See Debry, 1999 UT 111 at ¶ 25.

First, Utah courts interpret “during or in the course of a judicial proceeding” broadly. See Price, 949 P.2d at 1256-57. This includes not only statements made pursuant to an actual judicial proceeding, but also allegations contained in offers of settlement before a suit is even filed. Id. at 1257. It applies to “every step in the proceeding until final disposition.” Debry, 1999 UT 111 at ¶ 14. To escape the absolute judicial privilege, there must be specific allegations that certain communications or statements that have allegedly injured the defendant’s reputation were made outside the course of the litigation.

Second, to be protected by judicial privilege, the “statement must have some reference to the subject matter of the proceeding.” Price, 949 P.2d at 1256. The statement, however, does not need to be relevant or pertinent to the judicial proceeding from an evidentiary point of view for the privilege to apply. DeBry,1999 UT 111 at ¶ 16. The statements merely need “some relationship to the cause or subject matter involved.” Id. Clearly, any pleadings in a case are within the scope of statements referring to the subject matter of this proceeding.

Third, to be protected by the judicial privilege, the “statement must have been made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.” Price, 949 P.2d at 1256. The litigant and its actions or communications are protected by the judicial privilege. Where party acts through counsel, its statements similarly are protected.

The application of the absolute judicial privilege in every other state is consistent with Utah law. The best articulation of the absolute judicial privilege may be in O’Brien v. Alexander, 898 F. Supp. 16 (S.D.N.Y. 1995). In O’Brien the Court held that, under New York law, statements by parties and their attorneys in context of legal proceeding “are absolutely privileged if, by any view or under any circumstances, they are pertinent to the litigation.” Id. at 171 (emphasis added). “The absolute judicial privilege embraces anything that may possibly or plausibly be relevant or pertinent, with the barest rationality, divorced from any palpable or pragmatic degree of probability.” Id. (emphasis added). That far reaching application is as it should be: any other view has an unwarranted chilling effect upon the filing of Complaints.

© 2014 Mark A. Larsen
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