(concurring in the result):
Although I concur in the affirmance of the judgment dismissing the complaint, my reasons for so doing are quite different from those expressed in the majority opinion. Initially I find here no issue of “restraint on a citizen’s right to disseminate his views on important public issues * * Upon this appeal the only issue before us is: does the amended complaint on its face state a cause of action? Nor is there any issue as to whether Daeey’s acts constitute the unlawful practice of law. That issue has been laid at rest by the New York Court of Appeals. No judge is being sued — hence, judicial immunity is not involved. The issues of free speech and the suppression of a book or of Dacey’s “views to the public generally by the means of the publication and distribution of a book” are not before us. The only question stated more extensively is: is the Association upon .the facts alleged in the amended complaint immune from actionable suit by Dacey for having proceeded (ultimately unsuccessfully) against him for the unauthorized practice of law?
No answer has been interposed. No “defense” of immunity has been pleaded. Therefore the failure to state a claim must be found in the nature of the suit itself — in effect, the disclosure of facts from which a built-in immunity may be derived. The decisions leave no doubt that such immunity may be presented upon the motion to dismiss.1
Looking at the amended complaint itself, despite Dacey’s allegations that the Association’s proceedings “were undertaken by defendant solely for the purpose of preventing the plaintiff from criticizing and speaking out in opposition to the practices of certain lawyers, judges and courts whose management of decedents’ estates was improper” and to prevent the sale of his book, the amended complaint .adequately discloses that the Association sought to and did for a period of time enjoin Dacey from the unauthorized practice of law. The motives, the purposes, the conspiracy and the malice allegedly may all be assumed. In fact it is into these very motives and purposes that Dacey would seek to probe upon a trial. And it is for this very reason that the courts so uniformly have erected a barrier for the public good against such a happening.
Whence is derived this immunity claim by the Association ? The Legislature has seen fit to grant the right to institute a proceeding against unlawful practice to court, other officer or any bar association. The means whereby such an association may proceed are pointed out by the court below, i. e., (1) by criminal prosecution; (2) by a civil action under Judicial Law § 476-a; and (3) by summary proceedings under § 750, subd. B. Where as here the relevant facts are undisputed, namely, the proceedings themselves, the § 750, subd. B approach was warranted. Dacey argues that § 476-a should have been used so that the Attorney General could have decided whether in his opinion the complaint was well founded and whether a proceeding should be commenced; and that only by this procedure could immunity under § 476-b be achieved. However, the immunity section was added to § 476 merely to eliminate the potential liability against which a bond was required in the event that a temporary restraining order was desired. As the Attorney General at the time (1958) stated in his memorandum to the *197Legislature, “in prosecuting such [unauthorized practice] actions bar associations are therefore performing the same public functions as the Attorney General or any other public law enforcement official. * * * It is only just and proper that when a bar association functions as a law enforcement agency, under statutory authority, it should enjoy the same immunity from liability for costs and damages as that extended elsewhere in the law to public officials performing the same duties.” (New York State Leg. Annual 1958, p. 11.) Since the Legislature has equated bar associations with courts and prosecuting officers, the law applicable to them should be equally applicable to the Association here.
The Association in previous proceedings has been recognized in its prosecutorial role. In re Bercu, 273 App.Div. 524, 78 N.Y.S.2d 209 (1st Dept.1948), aff’d 299 N.Y. 728, 87 N.E.2d 451; In re Roel, 3 N.Y.2d 224, 165 N.Y.S.2d 31, 144 N.E.2d 24 (1957), app. dism. 355 U.S. 604, 78 S.Ct. 535, 2 L.Ed.2d 524 (1958). Dacey’s fear of the Association acting as a vigilante committee cannot be reconciled with the vigilante concept which normally embraces the thought of apprehension, trial and execution of judgment, all by the vigilantes. In marked contrast, Dacey has been afforded every step of due process in the courts. The cases, therefore, involving police officers have no bearing as precedential value on the decision here.2
What Dacey desires is “his day in court to test the motives of the defendant-appellee [the Association] in using the procedure it chose, on such a novel issue before a hostile court.” 3 (Dacey brief p. 13.) But this “day” (if he wishes to test the motives of the committee or the members of the largest local bar association in the United States, the “day” could become weeks or months) in court is exactly what the courts have decided is not in the public interest.
A few sentences from decisions, in which the courts have had to cope with arguments similar to those now advanced by Dacey, will suffice as a guide to the correct result here. The recognition of a common law immunity for judges from tort actions was made by the United States Supreme Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871). Justice Field’s opinion justifies the privilege in terms of freedom from “vexatious litigation” and “apprehension of personal liability” that would hamper judges in the discharge of their judicial functions. The immunity was described as being
“not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” 80 U.S. (13 Wall.) at 350, quoting from Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868).
In Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), the Court granted a similar absolute privilege to *198the Postmaster General in a defamation action.
The Second Circuit has long recognized the need to extend the immunity-granted to judicial officers to public prosecutors.4 In Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff’d per curiam 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), a Special Assistant to the Attorney General, who had been appointed to prosecute the plaintiff, was alleged to have prosecuted an indictment maliciously and without probable cause. This Court held that:
“[A] special assistant to the Attorney General of the United States, in the performance of the duties imposed upon him by law, is immune from a civil action for malicious prosecution based on an indictment and prosecution, although it results in a verdict of not guilty rendered by a jury. The immunity is absolute, and is grounded on principles of public policy. The public interest requires that persons occupying such important positions and so closely identified with the judicial departments of the government should speak and act freely and fearlessly in the discharge of their important official functions. They should be no more liable to private suits for what they say and do in the discharge of their duties than are the judges and jurors, to say nothing of the witnesses who testify in a case.” 12 F.2d at 406.
In the front rank of cases establishing an immunity from common law actions for malicious prosecution is Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950). In dismissing this suit against two successive Attorneys-General of the United States, two successive Directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island, Chief Judge Learned Hand stated:
“ * * * to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” 177 F.2d at 581.
The justification given for immunity involved a balancing of the evils that were inevitable in either alternative. This balancing revealed that it was:
“better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” 177 F.2d at 581.
Where a court-appointed commission of two doctors is authorized by statute, immunity has been extended to them even though the plaintiff in his suit had alleged that by the defendants’ intentional actions he had been illegally committed and that, therefore, he was entitled to damages under the civil rights laws. The Seventh Circuit said:
“Drs. Fein and Imbiorski as members of the court-appointed statutory commission share the court’s judicial immunity, and in the performance of their quasi-judicial functions are not subject to suit under the sections of the statute here involved.” Byrne v. Kysar, 347 F.2d 734, 736 (1965), cert. denied 383 U.S. 913, 86 S.Ct. 902, 15 L.Ed.2d 668 (1966).
The entire purpose of immunity would be defeated if an allegedly aggrieved plaintiff by charges of malice and self-interest by a bar association could subject its members, or a committee thereof, to a trial in an endeavor to probe into *199such motives. In Gregoire the Court stated:
“[I]t can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not .their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.” 177 F.2d at 581.
Even though these common law immunities are called “absolute,” there have always been limitations placed upon them. Common formulations of that limitation have included the requirement that “the official’s act must have been within the scope of his powers,” Gregoire, supra, and that “a distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter,” Bradley, supra, 80 U.S. (13 Wall.) at 351. Thus, any limitation must be understood in terms of the scope of the official’s duties, and not in terms of either any malice which might have motivated the official or any lack of probable cause which might have justified the action. But here there is no question that the action of the Association was within the scope of the powers bestowed by § 750, subd. B of the Judiciary Law. Mr. Justice Frankfurter answered Dacey’s present argument, seeking to obtain a trial, in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) wherein he said:
“The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. * * The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives” (377, 71 S.Ct. 788).
In the Tenney case, a committee of the legislature had acted but here statutory authority has been expressly bestowed upon bar associations. Thus the admonition in Tenney is applicable, namely:
“The courts should not go beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province” (378, 71 S.Ct. 789).
Nor can any legal distinction be derived from the difference between action by an integrated bar and the statutorily authorized Association. Therefore the grant of immunity against a suit by a disbarred attorney is most relevant here.5 As to such a suit under civil rights laws, the Ninth Circuit said:
“As an arm of the Washington Supreme Court in connection with disciplinary proceedings, the Bar Association is an ‘integral part of the judicial process’ and is therefore entitled to the same immunity which is afforded to prosecuting attorneys in that state.” Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966).
Thus, in my opinion, the decisions support the syllogism that (1) the ju*200diciary is immune from liability for damage claims brought under § 1983, (2) public prosecutors are quasi-judicial officials, (3) the Association is performing the same role as a public prosecutor here, therefore, (4) the Association is immune in this case upon the facts as pleaded.
The District Court, therefore, correctly granted absolute immunity because “the Association when it acts under Judiciary Law § 750, subd. B is a part of the judicial process.” 290 F.Supp. 841-842 (S.D.N.Y.1968). This conclusion is uniformly supported by the decisions of the New York courts and the United States Supreme Court.
In view of the nature of the narrow issue before us, I must take issue with that portion of the majority’s opinion entitled “III. The Prosecutorial Role of the Association,” first, because it does not reflect the existing pertinent law and, second, because in my opinion it is entirely irrelevant to the only question before us. The law as to immunity as thus far written does not depend upon a finding by an appellate court that it would be “unwise to grant the Association immunity in this case” or because its concept of the public’s interest “prevents [it] from granting absolute immunity to the Association in this case.” Such a hypothetical situation is not before us. Nor should we give advisory opinions as to such future situations as may arise with respect to the giving of unauthorized advice to “specific individuals.” Furthermore, the hypothesis that “an overzealous public prosecutor may create an unjustified restraint on expression by bringing a completely unwarranted prosecution for obscenity and still be immune from damages in a civil action” is no justification for lessening the immunity privilege. I find no relationship between the public policy involved in granting to the Association the power to protect against .the unauthorized practice of the law and any inhibition of free speech.6 And I do not accept “the inevitable presence of a possible conflict of interest between the purposes served by the Association and its conception of the public interest whenever it exercises its statutory power to initiate contempt proceedings under § 750, subd. B.” Nor are wrongfulness or malice determining factors because allegedly wrongful acts were present in the analogous complaints dismissed for failure to state a claim. Thus I would hold that .the Association upon the facts pleaded in the amended complaint is entitled to absolute immunity from Dacey’s suit.
Since, however, the law in this Circuit is that the “granting of a final injunction, despite reversal on appeal, is conclusive evidence of probable cause,” Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 104 F.2d 105, cert. denied 308 U.S. 599, 60 S.Ct. 131, 84 L.Ed. 501 (1939), and since this fact appears in the amended complaint, I accept this ground for dismissal of the amended complaint despite my belief that there is inconsistency in denominating “probable cause” a “defense” on a motion to dismiss for failure to state a claim.
. Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966) (see footnote 7 of Bauers, page 586, for citations of 47 cases relevant to the immunity question); Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965).
. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court reversed the dismissal of an action against state police officers. A cause of action was found to be stated under § 1 of the 1871 Civil Rights Act, 42 U.S.C. § 1983. In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the immunity of state police officers was considered. The common law had never granted an absolute immunity to police officers, but did allow the defense of good faith and probable cause. Since the same considerations present in common law actions were present in § 1983 actions, the Court held that the defense was available to police officers sued under § 1983. 386 U.S. at 555, 557, 87 S.Ct. 1213.
. Presumably Dacey refers to the five judges (Special Term and four Appellate Division) who ruled against him because he stated “ * * * it is not unlikely that many of the judges who held against Dacey in the lower courts of New York, were themselves members of the New York County Lawyers Association.” (Dacey brief p. 13.) Yet Dacey and his attorney did not suggest disqualification or even hostility on the part of Judge Wyatt, who advised them of his membership in the Association.
. The most relevant and recent case in this area is the decision by this Court in Fanale v. Sheehy, 385 F.2d 866 (1967), in which it was stated:
“If, then, as we hold, the complaint’s allegations as to [a county district attorney] are confined to official action, lie, too, is entitled to immunity.” 385 F.2d at 868.
. The majority would distinguish the decision in Clark v. Washington, 366 F.2d 678 (9th Cir. 1966) by relying upon the absence of the “allegation that the disbarment proceeding had restrained [the disbarred attorney] from expressing his view on public issues.” It should be noted that the allegations of a deprivation of constitutional rights under the Fourth, Eighth and Fourteenth Amendments did not prevent the Ninth Circuit from finding absolute immunity for the Bar Association.
. The majority say that “The objective and effect of instituting criminal contempt proceedings for the unauthorized practice of law against Dacey were to suppress a book” and that “the Association acted to prevent Dacey from disseminating his views to the public generally by means of the publication and distribution of a book.” By these assumptions, the majority would . create “free speech” issues. The injunction against the sale of his book, although ultimately reversed by the New York Court of Appeals, was a consequence of the state trial court’s finding that it constituted the unauthorized practice of law. Therefore, it would seem fallacious to construe the mere institution of such a proceeding as an act to suppress criticism of existing probate practices.