with whom KAUGER and ALMA WILSON, Justices, joins; dissenting:
The matter before us today is properly defined by the majority. If the application made to file a delayed certificate of birth under 63 O.S.1981 § 1-3131 is a judicial proceeding or “other” proceeding authorized by law as used in 12 O.S.1981, § 1443.1,2 there is little doubt that the majority correctly holds that the proceeding under 12 O.S.1981, § 1443.1 applies to quasi judicial proceedings.
To be terse and to the point, I do not believe the action or application is judicial, quasi-judicial, or any other proceeding authorized by law, as that term is used in 12 O.S. § 1443.1. Delayed application for registration of a birth is purely administrative and ministerial in nature. No hearing or proceedings under § 1443.1 are contemplated or guaranteed. In the case at bar, no hearing was had, no evidence necessary to a proceeding was given, no opportunity for cross-examination was contemplated or guaranteed. The application phase of late registration of birth is not subject to § 1443.1.3
The majority cites the Restatement (Second) of Torts §§ 586, 587 and 588. I would suggest that the Restatement (Second) of Torts § 586 Comment e in dealing with a purely administrative proceeding, which I believe delayed registration of birth to be, states the gist of my argument:
As to communications preliminary to a proposed judicial proceeding the rule ... applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered, [emphasis supplied].
No further action has been taken by the plaintiff to date of this appeal.
Comment a to § 586 of the Restatement Second, adopted by the majority, provides:
The privilege stated in this section is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients. Therefore the privilege is absolute. It protects the attorney from liability in an action for defamation irrespective of his purpose in publishing the defamatory matter, his belief in its truth, or even his knowledge of its falsity_ The publication of defamatory matter by an attorney is protected not only when made in the institution of the proceedings or in the conduct of litigation before a judicial tribunal, but in conferences and other communications preliminary to the proceedings. The institution of a judicial proceeding includes all pleadings and affidavits necessary to set the *956judicial machinery in motion. [Emphasis supplied.]
The above Comment requires no ethical consideration on behalf of an attorney. It is contra to his oath4 and says in essence: “You may know the statement is untrue, false and unethical — but under § 1443.1 go ahead. It is absolutely protected.”
The legislature by enactment of 12 O.S. 1981, § 1443.1, has no power to abrogate the powers granted by Articles IV and VII of the Oklahoma Constitution to the Supreme Court. Developing, rule making, and fostering and maintaining in attorneys engaged in the practice of law, high ideals of integrity are the sole function of this Court. Nor should the recommendation of the Restatement Committee be allowed to undermine the integrity of the Bar of Oklahoma and this Court.
Another theory or vice of the majority opinion, regardless of the acceptance of the administrative argument proceeding, remains.
The evidence of Dr. Haynes and the lawyer Moore appears to stand at opposite poles. The affidavit prepared by the lawyer, the narrative of the meeting between the doctor and lawyer, is plainly set out by the majority. We do not challenge it. The conclusion I would draw differs radically. The hiatus or lacuna missing is a fact determination from evidence taken and given during a hearing or proceeding in defamation. The majority to me states a missing factor when it says:
A further question arises here, however, because the specific ODH (Okla. Dept, of Health) rule relating to delayed birth certificates does not appear to contemplate an actual hearing before the Commissioner, but only a submission of documentation. [emphasis supplied],
The attempt to gloss over the failure of conducting a proceeding as contained in the majority opinion hasn’t convinced me.
Cases are legion which require an adversarial proceeding or hearing to establish an evidentiary fact. The instant case should require such a proceeding or hearing between the doctor and lawyer to establish the thrust and truth of their meeting. In the case of McCorkle v. Great Atlantic Ins. Co., 637 P.2d 583, 587 (Okl.1981), we opined:
“... and if there is conflicting evidence from which different inferences may be drawn regarding the reasonableness of insurer conduct, then what is reasonable is always a question to be determined by the trier of fact.”
There remains a material fact in the determination of the truthfulness of the positions of the doctor and lawyer.
The majority opinion points out that no application of 63 O.S.1981, § 1-313 and § 1-315 has been made in a proceeding or hearing before the Oklahoma Department of Health. The majority further states in speaking of 12 O.S.1981, § 1443.1 and the instant case that ... “The situation here does not fall within the statute’s protection because the communications involved were all made preliminary to a proposed proceedings the record fails to disclose has ever been instituted.” [Emphasis Supplied]. I conclude the undenied fact that no certificate of birth has been applied for becomes important, if not a deciding criterion.
No precedential opinion on the issue presented exists from this Court; however, in 23 ALR 4th 932 there is collected an annotation from Federal and State Courts on the subject. The discussion commences with the usual general statement, to-wit:
*957“Where judicial proceedings are not pending, comment e limits the application of the privilege to communications having a relationship to proposed judicial proceedings which are contemplated seriously and in good faith. Comment e states that the absolute privilege does not apply where the institution of judicial proceedings is not seriously considered.”
However, it follows with this observation:
“... some courts have limited the scope of the privilege to defamatory statements uttered by an attorney after the formal commencement of judicial proceedings, and have held that the extrajudicial statements of counsel prior to the institution of litigation are not within the scope of the privilege relating to statements uttered in the course of judicial proceedings (§ 3[b], infra).” 5
Cases support the view that ... “statements of attorneys published in the course of judicial proceedings did not apply to the statements of counsel which were uttered before the formal commencement of judicial proceedings, in the course of preparation or investigation related thereto, to persons other than the defamed party’s agents.” The lawyer and doctor are hardly plaintiff/Kirschstein’s agents.
Admittedly no “pat horse” case can be found in this annotation. These cases, pro and con, are concerned with private news conferences, letters of request for stat-ments, demand letters, letters to escrow agents, and letters to witnesses, etc.
I concur with the majority disposition of the claim of Kirschstein to determine heirs. I would deny privilege and remand for further proceedings.
. See footnote 1 of the majority opinion.
. See footnote 8 of the majority opinion.
. Footnote 7 of the majority opinion cites examples of proceeding, judicial or quasi judicial in nature where privilege may be properly granted.
. "I do solemnly swear that I will support, protect and defend the Constitution of the United States, and the Constitution of the State of Oklahoma, and that / will do no falsehood, or consent that any may be done in court, and if I know of any I will give knowledge to the judges of the court, or some one of them, that it may be reformed: I will not wittingly, willingly or knowingly promote, sue or procure to be sued, any false or unlawful suit, or give aid or consent to the same; I will delay no person for lucre or malice, but will act in the office of attorney of this court according to my best learning and discretion, with all good fidelity as well to the court as to my client, so help me God.” See also the preamble of the Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S.A. Ch. 1, App. 1, p. 95 and Art. I, Sec. 1 and 2 of 5 O.S.A. Ch. 1, App. 1 of such Rules.
. Pro: Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958); Kenney v. Cleary, 47 App.Div.2d 531, 363 N.Y.S.2d 606 (1975); Rosen v. Brandes, 105 Misc.2d 506, 432 N.Y.S.2d 597 (1980); Kent v. Connecticut Bank & Trust Company, 386 So.2d 902 (Fla.1980), and Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617 (1984). Con: Ascherman v. Natanson, 23 Cal. App.3d 861, 100 Cal.Rptr. 656 (1972); Lerette v. Dean Witter Organization, Inc., 60 Cal.App.3d 573, 131 Cal.Rptr. 592 (1976); Larmour v. Campanale, 96 Cal.App.3d 566, 158 Cal.Rptr. 143 (1979); Johnson v. Cartwright, 355 F.2d 32 (applying Iowa law) (1966); Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882 (1976) and others. See 23 A.L.R. 4th 932, 939.