Morton and Barbara Simons, plaintiffs and appellants, are attorneys licensed to practice law in New York who maintain an office in the District of Columbia. Although their practice in the District is exclusively before federal courts and agencies, this limitation is explained in neither their telephone listing nor their stationary. Commencing in April 1974, the Committee challenged the Simonses' right to maintain a law office in the District. Evidently, the Committee believed that, by virtue of their phone listing and stationery, the Simonses improperly held themselves out as authorized to practice law in the District of Columbia. An inquiry into the Simonses' practice ensued and, in due course, Mr. Simons was subpoenaed to appear before the Committee. Eventually, in May 1977, the Committee completed its inquiry without taking further action; by letter dated May 9, 1979, the Committee's chairman notified the Simonses:

"From your testimony the Committee has concluded that your practice is exclusively before the federal agencies and in related matters before the federal courts. The Committee has further concluded that while your letterhead and telephone listing constitute a technical violation of Rule 46 II, in view of all the surrounding circumstances, there has been no prejudice to the public and therefore no occasion for the Committee to take further action.

"Accordingly, the Committee has completed its investigation and has closed its file."

While the Committee was researching the matter and deliberating the need for seeking legal relief, the Simonses brought this suit. They alleged that the Committee had harassed them in violation of the first, fifth and fourteenth amendments as well as article VI, cl. 2 of the United States Constitution.3 Although the Simonses' initial complaint sought declaratory, injunctive and monetary relief, the Committee's decision not to go forward with its suit rendered moot the declaratory and injunctive portions of the Simonses' claim. By order of March 3, 1978, the motions panel of this Court granted summary affirmance to the dismissal of the claims for injunctive and declaratory relief.4 The remainder of the Simonses' complaint seeks to recover $150,000 in compensatory damages and an identical sum in punitive damages.

By order of October 19, 1975, the district court dismissed the Simonses' case for lack of subject matter jurisdiction. The Simonses appealed the dismissal, and, a year later, this Court reversed the judgment of the district court and remanded with instructions "to defer further action for a reasonable period of time to afford appellants an opportunity to obtain a definitive ruling as to whether their activities violate the rules of the District of Columbia Court of Appeals governing the practice of law, and to allow the unauthorized practice of law proceedings to be concluded." Simons v. Bellinger, 177 U.S.App.D.C. 270, 543 F.2d 417 (D.C.Cir.1976) (unpublished opinion). On remand, the district court entered a protective order barring all discovery until the Committee issued a definitive ruling regarding the Simonses' allegedly unauthorized practice of law. After the Committee completed its inquiry, the defendants moved for summary judgment and the district court entered an order granting their motion. C.A. No. 75-1164, Order (D.D.C. Sept. 6, 1977). The Simonses have appealed this order.

The district court's order deals tersely with the issue presented by this appeal. Ruling on the Simonses' right to monetary relief, the trial judge concluded that the "actions of Defendants in investigating Plaintiffs' practice of law were reasonable and within their lawful authority." C.A. No. 75-1164, Order, slip op. at 3 (D.D.C. Sept. 6, 1977). Apparently, the district court found that the defendants were entitled to a qualified immunity i. e., immunity only for acts done reasonably and in good faith. Yet, it is clear that the good faith of the defendants was the single most disputed material fact in the case. Thus, absent a finding that the defendant Committee members are entitled to a more protective immunity, the district court's order would have to be reversed. Before this Court, the defendants have renewed their argument that, under all the circumstances of this case, they are entitled to absolute immunity. Because we are persuaded that the defendants are essentially correct, we affirm the judgment of the district court.

II. UNDER THE CIRCUMSTANCES OF THIS CASE, THE COMMITTEE

The sound operation of the judicial process requires that those most closely associated with the system be afforded some immunity from monetary damages in civil actions. Although immunity must, of course, vary with both the status and activities of each particular official, judges, prosecutors, and jurors have all been recognized as deserving some form of immunity. In Pierson v. Ray, 386 U.S. 547, 553, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the Court explained, "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction." See also Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871). Prosecutors have been regarded as "quasi-judicial" officers entitled to the same absolute immunity as judges when their "activities (are) intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). This Court has recognized that public policy dictates that absolute immunity is not appropriate for prosecutors when they are "engaged in essentially investigative as opposed to advocatory activities." Briggs v. Goodwin, 186 U.S.App.D.C. 179, 190, 569 F.2d 10, 21 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). Thus, bona fide investigative officers, even those acting under the title of "prosecutor," are only entitled to qualified immunity for acts performed within the scope of their authority; under this type of immunity, officials are protected from liability if their acts are reasonable and performed in good faith.

The distinctions drawn in Briggs accurately portray the flexibility of the immunity doctrine, a flexibility which calls upon the court to weigh such factors as the status of the defendant, the nature of the alleged acts and, above all, the utility of a grant of immunity. In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Supreme Court recently analyzed the considerations which a court must weigh in determining the utility of a grant of immunity. Butz involved claims of immunity by several Department of Agriculture employees who had played a part in an unsuccessful attempt to revoke the registration of a commodity futures commission merchant named Arthur N. Economou. The individuals sued by Mr. Economou were all members of the executive branch; they included the Secretary of Agriculture, the chief hearing examiner who had presided over the proceeding, the Department of Agriculture attorney who had prosecuted the enforcement proceeding, and several auditors who had conducted the investigation. 438 U.S. at 482, 98 S.Ct. 2894. In evaluating their claims of immunity, the Court explained, "(O)fficials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope." Id. at 506, 98 S.Ct. at 2911. The Court's public policy evaluation involves three factors. First, "the functional comparability" of an official's judgments to those of a judge is a sine qua non of falling within the umbrella of "quasi-judicial immunity." Id. at 512, 98 S.Ct. 2894. Second, the nature of the controversy in which the official is forced to become a participant must be sufficiently intense so that there is a realistic prospect of continuing harassment or intimidation by disappointed litigants. Id. And, third, the system in which the official operates must contain safeguards adequate "to reduce the need for private damage actions as a means of controlling unconstitutional conduct." Id. Applying these factors, the Court held that adjudication within a federal administrative agency is sufficiently similar to the judicial process so that government participants in such adjudication should be afforded immunity.

We find that under the circumstances of this case, the application of these factors to the work of the defendant Committee members also warrants a grant of immunity. Moreover, we find that, here, the only appropriate immunity is one which is absolute.

The Simonses argue that, by title alone, the Committee members are neither judges, prosecutors, jurors nor witnesses and, accordingly, they may not benefit from any of the immunities commonly afforded those participants in the legal process. The lesson of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), however, is plainly to the contrary. It does not matter that we are unable to cast the defendants in any of these familiar roles; if the Committee's unique role is sufficiently similar to that of its more well-known counterparts, then we must recognize that some form of immunity is appropriate. In this fashion, the Supreme Court has extended immunity, in varying degrees, to members of the executive branch who participate in the administrative adjudicatory process. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), on remand, 466 F.Supp. 1351 (S.D.N.Y.1979). In this case, we find that the Committee members primarily resemble prosecutors but, because they also possess some of the characteristics of an inherent judicial power, we must recognize more than their prosecutorial function in evaluating their need for immunity.

The defendant Committee members resemble prosecutors for the simple reason that they are charged with the responsibility of initiating disciplinary actions. Like prosecutors, they not only start litigation, but also prepare cases, conduct trials, and negotiate settlements. Indeed, the parallel between prosecutors and bar association committees which, like the defendants, police the legal profession, is well established. In Dacey v. New York County Lawyers Association, 423 F.2d 188 (2d Cir. 1969), aff'g 290 F.Supp. 835 (S.D.N.Y.1968), cert. denied, 398 U.S. 929, 90 S.Ct. 1819, 26 L.Ed.2d 92 (1970),5 the Second Circuit reviewed a claim of immunity by a bar association which had instituted legal proceedings charging a non-lawyer, who wrote on legal subjects, with the unauthorized practice of law; the court concluded, "We are of the view that when the Association instituted its proceedings against Dacey, its role was analogous to that of a public prosecutor." 423 F.2d at 192. The recognition of this similarity has been a critical factor in the courts' virtually unanimous recognition of the immunity afforded individuals duly authorized to enforce rules regarding bar membership. Indeed, plaintiffs have not presented this Court and we are unable to find a single case in which committee members similar to the defendants were held liable for their conduct.

A review of the relevant precedent is instructive. In Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966), the court held that when the Washington State Bar Association instituted a disciplinary proceeding, it acted as an "integral part of the judicial process." In this role, the court concluded, it was entitled to the same immunity afforded the state's prosecuting attorneys. 366 F.2d at 681. The Seventh Circuit followed Clark in Kissell v. Breskow, 579 F.2d 425 (7th Cir. 1978), a suit against the executive secretary of the Disciplinary Commission of Indiana. The executive secretary of the Commission is appointed by the Indiana Supreme Court and is empowered to investigate and prosecute misconduct by Indiana attorneys. In Kissell, the plaintiffs charged that the disciplinary suit instituted by the executive secretary had violated their constitutional rights. The court, however, found that the defendant was "in a position analogous to that of a prosecuting attorney" and thus protected by "quasi-judicial absolute immunity." 579 F.2d at 428. The holdings in Kissell and Clark accurately reflect a persuasive and well-reasoned line of authority. See Mayes v. Horn, 542 F.2d 822, 824 (10th Cir. 1976); Ginger v. Circuit Court for County of Wayne, 372 F.2d 621, 625 (6th Cir.), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 998 (1967); Campbell v. Washington State Bar Association, 263 F.Supp. 991 (W.D.Wash.1967) (three-judge court); Niklaus v. Simmons, 196 F.Supp. 691, 714 (D.Neb.1961). Individuals who serve in capacities similar to those of Committee members are certainly protected by some form of immunity, either qualified or absolute.

Although other courts have drawn the analogy between a Committee member and a prosecutor and relied upon that rough similarity to grant absolute immunity we do not accept the proposition that the defendants are, for immunity purposes, precisely identical to prosecutors. The clear lesson of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), is that immunity may not be determined by a simple resort to status or title. Rather, Butz demands that both the allegations against the defendant and the precise nature of the defendant's work be examined in light of the three factors previously discussed. We turn now to that evaluation.

Having determined that the Committee merits the protection of immunity, the key question becomes whether that immunity should be qualified or absolute. The rough analogy between the Committee's function and that of a prosecutor suggests that the investigative/advocatory dichotomy adopted by this Circuit in Briggs v. Goodwin, supra, should apply to the activities of Committee members. We accept the proposition that Briggs offers significant guidance on the immunity issue, but we note that when immunity is at issue, bright line distinctions are virtually impossible. Butz indicates that each case must be examined on its own facts. In lieu of a mechanical application of either Briggs or the prosecutorial analogy, we conduct such an examination, applying the three factors employed in Butz.

Under Butz, the first criterion which we must consider is whether the Committee's judgments upon which the Simonses have brought suit possess a "functional comparability . . . to those of a judge." We find that they possess this vital characteristic in two respects. First, and most significantly, the Committee members were clearly engaged in preparing and, perhaps, initiating, a particular lawsuit a critical phase of any prosecution. Second, in assessing whether to initiate a prosecution, the Committee was performing, by delegation, the inherent judicial function of determining who is authorized to practice law.

In Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Court held that "in initiating a prosecution," a state prosecutor's decision was sufficiently comparable to a judicial judgment to merit absolute immunity. Like a judge, the prosecutor was involved in the sensitive process of starting and stopping litigation. Although this Court has ruled that a prosecutor cast in the role of an investigator is entitled to qualified immunity, the Court in Imbler noted:

We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.

Id. at 431 n.33, 96 S.Ct. at 995 n.33 (emphasis added). Thus, even when a prosecutor acts outside the courtroom, in territory more commonly patrolled by investigative officers, he may, on occasion, still benefit from a grant of absolute immunity. By analogy to prosecutors, the Committee members' out-of-court contact with the Simonses may also be fully protected and under the facts of this case, such protection is appropriate.

The Committee's entire dealings with the Simonses were certainly directed toward a determination of whether the initiation of formal proceedings would be appropriate. Here, the Committee members had passed beyond a mere search for the signs of illegal conduct and even beyond an investigation for the perpetrators of that conduct. From their first contact with the Simonses, the members had already established a prima facie case: the Simonses had an office in the District and they were not members of the local Bar.6 The subpoena served upon Mr. Simons, and other methods which the Committee employed to gather information, were all part of the members' attempt to determine whether or not the Simonses' apparent violation warranted a formal prosecution. The decision of whether or not to prosecute is well-recognized as a determination which is comparable to judicial decisionmaking and which also requires the full protection of absolute immunity. In this instance, the Committee members deserve no less. Having genuinely focused upon particular defendants and a particular wrong, the Committee is entitled to absolute immunity when it makes inquiries necessarily antecedent to its determination regarding prosecution. In this sense, the Committee members were, in reality, advocates preparing for a particular lawsuit.7 Indeed, absent immunity, the Committee could only be protected by actually initiating a formal proceeding against every apparent violator.

The Committee members' work is functionally comparable to the work of judges in a second respect. They serve as an arm of the court and perform a function which traditionally belongs to the judiciary. In this sense, the Committee's efforts to ascertain those practicing law without proper authority are judicial efforts. The court's power to determine who may appear before it was aptly summarized by Chief Justice Taney in Ex Parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1856):

And it has been well settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed. The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court, as the rights and dignity of the court itself.

The Court of Appeals for the District of Columbia has put the matter more bluntly: "No one denies that a court has an inherent right to make rules governing the practice of law before it. And courts, including those in this jurisdiction, have promulgated rules concerning who may practice law before them."8 In Laughlin v. Clephane, 77 F.Supp. 103, 105-06 (D.D.C.1947), a suit against the Committee on Admission and Grievances, the predecessor of the defendant Committee, the district court analyzed the special relationship between judges and the attorneys whom they appoint to assist them in policing the Bar:9

The District Court exercised not only an inherent power but a statutory right to promulgate rules with respect to admissions of attorneys to practice at its bar. In doing this it had a right to call to its assistance the Committee designated as a Committee on Admissions and Grievances. It would be idle to exercise a power to admit to the bar unless it at the same time exercised power of supervision, and, in proper cases, order disbarments.

Thus, the Committee acts as a surrogate for those who sit on the bench. Indeed, were it not for the Committee, judges themselves might be forced to engage in the sort of inquiries which the plaintiffs have put in issue. In sum, the Committee members, as a bona fide arm of the Court of Appeals of the District of Columbia, must almost by definition make decisions comparable to those of a judge.10 The near-judicial nature of their work and the comparability, in this case, of that work to the protected efforts of a prosecutor point strongly to the appropriateness of a grant of absolute immunity.

A second factor established in Butz v. Economou, supra, also supports a grant of absolute immunity in this case. In Butz, the Court explained that absolute immunity would only be appropriate in situations where the officials who participate in the process of adjudication are likely to become defendants in later suits brought by litigants embittered by the outcome in the original forum. 438 U.S. at 512, 98 S.Ct. 2894, 2913-14. The Court explained, "(C) ontroversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus." Id. Absolute immunity, of course, protects officials from this inevitable harassment.

Like judges and prosecutors, the defendant Committee members are probable targets for harassing lawsuits. Indeed, because the Committee only prosecutes those who purport to be attorneys, its members might well be more likely targets for such litigation than either judges or prosecutors. Both legitimate and unauthorized practitioners alike may be expected to use their familiarity with the legal process to explore the possibility of vindication either real or imagined in other forums. Moreover, once the Committee has focused its inquiry upon a particular suspect, as in this case, its members become even more probable targets for harassment. Accordingly, absolute immunity is an appropriate shield. Perhaps, without this immunity, membership on the Committee would be transformed from a distinguished achievement in public service into an invitation to become a defendant in costly, time-consuming litigation.

The final factor considered by the Court in Butz was the existence of "safeguards built into the judicial process" which are sufficient to eliminate the need for private damage actions as a means of curbing unconstitutional conduct. 438 U.S. at 512, 98 S.Ct. at 2914. All of the safeguards noted by the Court in Butz are available to check improper conduct by the Committee. All proceedings instituted by the Committee are conducted before an impartial judge of the Court of Appeals of the District of Columbia, they are adversary in nature, and they are subject to appellate review by the entire Court of Appeals. In addition, the Committee's prosecutorial powers are severely curtailed by limitations which the Court of Appeals has placed upon the remedies which the Committee may seek: violations of D.C.Ct.App. R. 46 II (b)(1) are only punishable by contempt and/or subject to injunctive relief. Moreover, under D.C.Ct.App. R. 21(a), the defendant Committee members are "officers" subject to writs of mandamus; these writs effectively restrain improper action without adding the extra deterrent of monetary damages. Finally, because the Committee members are appointed by the Court of Appeals for brief three-year terms, safeguards are "built into the judicial process " at the time of appointment. In sum, the Committee and its members are subject to numerous checks capable of deterring, or correcting, unconstitutional conduct.11 The presence of these checks reduces the need for private causes of action and thereby renders absolute immunity appropriate.

Upon a consideration of all three factors mandated by Butz, we find defendant Committee members are entitled to the protection of absolute immunity.

The Simonses argue strenuously that the Committee members are, at most, entitled to the immunity afforded prosecutors and further that the members were engaged in purely investigatory activity which under Briggs v. Goodwin, supra, is subject to a qualified immunity. Under a qualified immunity, the "good faith" of the defendant Committee members would clearly be a material fact in dispute and we would have to reverse the judgment of the trial court. For two reasons, we decline to accept appellants' contentions.

First, as we have pointed out, the immunity doctrine is flexible, calling for a broad consideration of several factors. In weighing these factors, we have found that the defendants may be analogous to prosecutors, but they are not, in all respects, identical to their more familiar counterparts. The defendants may, on occasion, perform a function which is more "judge-like" than the work of prosecutors; in addition, their authority is more limited and their work subject to closer judicial supervision. Finally, the Committee members may even be more likely targets for harassing lawsuits than prosecutors. Thus, appellants' simplistic assertion that the Committee members are identical to prosecutors is unacceptable. In contrast, we find that there are differences between the Committee members and prosecutors and these differences must be weighed in determining the appropriate immunity. Further, we find these differences provide persuasive support for a grant of absolute immunity.

Appellants are also incorrect in claiming that under the investigatory/advocatory dichotomy established in Briggs v. Goodwin, 186 U.S.App.D.C. 179, 569 F.2d 10 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978), the Committee's inquiries were merely investigatory. In Briggs, this Court reviewed the conduct of a federal official who had been specially appointed to investigate and prosecute certain federal crimes committed by "various persons" in the Northern District of Florida, 186 U.S.App.D.C. at 182, 569 F.2d at 13. The prosecutor subpoenaed twenty members of the Vietnam Veterans Against the War (VVAW) and ordered them to appear before a grand jury. The subpoenaed individuals were concerned with the presence of turncoats at meetings with their attorneys, and they promptly moved in the district court to compel disclosure of any federal agents or informants within their midst. At a hearing on the motion, the prosecutor took the witness stand and allegedly falsely declared that none of the witnesses before the grand jury were agents or informants of the United States of America. Although the twenty subpoenaed individuals never testified before the grand jury, at the conclusion of the four-day proceeding, six of them were indicted on a variety of counts centering around an alleged conspiracy to unlawfully disrupt the 1972 Republican National Convention. Id. 186 U.S.App.D.C. at 182-183, 569 F.2d at 13-14. Later, ten VVAW activists, including the six indicted by the grand jury, brought suit against the prosecutor, claiming injury arising out of his alleged perjury at the hearing on the motion.

In reviewing the prosecutor's assertion of absolute immunity, this Court held, first, that "(W)hen a prosecutor is engaged in essentially investigative as opposed to advocatory activities, the consideration of public policy which necessitated a grant of absolute immunity in Imbler no longer control." Id. 186 U.S.App.D.C. at 190, 569 F.2d at 21. It held further that at the time of the prosecutor's testimony, his conduct was merely investigative:

(A)ppellant's primary task in Florida was to determine whether any violations of federal law properly attributable to the VVAW or its members had occurred. If any such federal crimes had been committed, Goodwin was to ascertain the precise nature of those crimes, and the identity of VVAW members to whom criminal liability might attach. The grand jury was to function in the first instance as an investigative tool, rather than in its more familiar guise as a deliberative body deciding whether to return indictments for specific crimes on the basis of evidence gathered and presented by a public prosecutor. The grand jury proceeding in this case was designed as a broad scale investigation into possible illegal activity by the VVAW or its members.

Id. 186 U.S.App.D.C. at 193, 569 F.2d at 24. Thus, Briggs directs us to look beyond both the guise and setting of the prosecutor's activity12 and to examine, instead, the maturity of his investigation.13 At some point, the prosecutor's inquiry becomes sufficiently focused so that he is preparing a case against a particular defendant rather than seeking a defendant against whom he may prepare a case.14 At this point, his efforts become advocatory: they are intimately associated with the sensitive decision of whether or not to initiate a particular prosecution, a decision which is left to advocates, not investigators.

The activity of the Committee in this case differs from that of the prosecutor in Briggs because it had focused upon both a set of defendants and a specific wrong. When the inquiry commenced, the Committee had already ascertained that the Simonses were holding themselves out as attorneys despite their lack of membership in the local bar. A prima facie case had been established and the Committee was trying to determine whether the apparent violation was genuine and, if so, whether it warranted a formal proceeding. The Committee members were neither searching randomly for violations nor ascertaining whether the Simonses had ever committed a violation. The Committee already possessed the type of information which a police investigation might gather and its attention had turned to the delicate issue of initiating a prosecution.

Briggs is clear in its declaration that prosecutorial activity is absolutely immune when it becomes focused upon a "particular criminal proceeding."15 In discussing Imbler's acknowledgment that some prosecutorial work outside the courtroom may be absolutely immune, see 424 U.S. at 431 n.33, 96 S.Ct. 984, this Court explained:

Although . . . a prosecutor's advocacy function does extend beyond the confines of the trial courtroom, the examples of such preliminary advocate activities provided by the Supreme Court are instructive for their common focus on a particular criminal proceeding. By the plain import of the Court's remarks, absolute immunity under Imbler extends only so far as necessary to protect a prosecutor's decision with respect to the initiation and conduct of particular cases. Imbler does not, in our reading, immunize prosecutors for any and all measures they may undertake in the course of wide-ranging law enforcement investigations or general fact-finding expeditions.

186 U.S.App.D.C. at 188-189, 569 F.2d at 19-20 (emphasis added). Here, absolute immunity is appropriate for the Committee's out-of-courtroom activity because that activity was related to the Committee's decision to initiate a particular case. Significantly, on remand, the trial court in Butz v. Economou, 466 F.Supp. 1351, 1359 (S.D.N.Y.1979) applied a standard similar to the one provided by Briggs. The trial court granted absolute immunity to all Department of Agriculture officials who both reviewed the original auditor's report indicating the existence of a violation, and participated in the decision to commence the disciplinary proceeding. The Committee members in this case likewise participated in the decision regarding the prosecution, and they also made inquiries of the targets of the potential prosecution. We find that their activities were sufficiently focused upon a particular proceeding so that they were not serving as mere investigators. Rather, they were preparing a case for trial and in this role, absolute immunity is more than appropriate.16

III. THE COMMITTEE MEMBERS WERE ACTING WITHIN THEIR JURISDICTION

Having determined that the Committee members are entitled to absolute immunity, we must affirm unless plaintiffs have alleged facts which indicate that the Committee was acting outside the scope of its jurisdiction. The Simonses assert that the exclusively federal nature of their legal practice places them beyond the authority of any local bar committee.17 Thus, they conclude, the Committee was acting beyond its jurisdiction throughout its inquiry into the propriety of their conduct.

Appellants, however, fail to comprehend the special meaning which the word "jurisdiction" assumes when immunity is at issue. The Supreme Court has declared that, with respect to immunity, "jurisdiction" ought to be defined broadly to include acts "having more or less connection with the general matters committed by law" to the official's supervision. Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896). In other words, an act is within the official's jurisdiction if it is not "manifestly or palpably beyond his authority." Id. In Briggs v. Goodwin, this Court also held that a broad interpretation of jurisdiction is necessary to guarantee a genuine benefit from the grant of immunity. It noted, "(A)ny allegation that an official, acting under color of law, has deprived someone of his rights necessarily implies that, in the particular case, the official exceeded his authority." 186 U.S.App.D.C. at 184, 569 F.2d at 15. The Court explained further that to accept such an allegation as by itself stating a claim, "would completely abrogate the doctrine of immunity." Id.

In this case, the Committee members performed activities which were not manifestly beyond their authority. Their inquiry regarding the Simonses' practice was plainly within the general matters which the District of Columbia Court of Appeals has committed to the Committee's discretion. Accordingly, we hold that the Committee at all times acted within its jurisdiction.

Based upon our finding of absolute immunity, we affirm the judgment of the district court. The Committee members are certainly officials who warrant some type of immunity and, in view of the circumstances of this case, absolute immunity is appropriate. The defendants here were gathering information after an apparent violation had come to their attention and the information they sought was critical to their decision regarding the prosecution of a particular case. In addition, the Committee members at all times acted within the scope of their authority. Accordingly, plaintiffs' suit for injuries arising out of the Committee's work is barred, and the judgment of the district court is hereby affirmed.

Affirmed.

My views concur with the result reached by the opinion by Judge Richey1 that the Committee on Unauthorized Practice, as appointed by the District of Columbia Court of Appeals2, has absolute immunity in exercising the inherent judicial power delegated to it by the court in determining compliance with the laws and rules governing the practice of law in the District of Columbia. I would also agree with the rationale of Judge Richey's opinion if the investigative/advocatory dichotomy was the sole consideration. However, I write separately because I consider the outcome of this case as being controlled by the recent decision of the Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)3 which I consider to be a stronger basis for decision.

The members of the Unauthorized Practice of Law Committee of the District of Columbia Court of Appeals are appointed by the "Court" and the Committee's rules become operative only with "the approval of the Court."4 Therefore, it is my opinion that the Committee members must be considered to be officers of the Court in carrying out their assigned responsibilities, since they exercise directly delegated judicial jurisdiction, are appointed by the Court to act in such capacity and "receive such compensation and necessary expenses as the Court may approve."5 Of course, all attorney's are "officers of the Court" but the Committee members in exercising their delegated jurisdictions here served as "officers" of the Court in an additional capacity that was principally judicial. Appellants are thus clearly in error in their contention that the members of the Committee are nothing more than "lawyers in private practice" who receive no compensation "paid from the public fisc."6

A. The Statute and Rules.

Congress, by statute, has authorized the District of Columbia Court of Appeals by "rules " to regulate the admission, censure, suspension and expulsion of members of its bar:

(a) The District of Columbia Court of Appeals shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion.

(b) Members of the bar of the District of Columbia Court of Appeals shall be eligible to practice in the District of Columbia courts.

(c) Members of the bar of the United States District Court for the District of Columbia in good standing on April 1, 1972, shall be automatically enrolled as members of the bar of the District of Columbia Court of Appeals, and shall be subject to its disciplinary jurisdiction. (July 29, 1970, Pub.L. 91-358, § 111, title I, 84 Stat. 521.)

D.C.Code, § 11-2501, 84 Stat. 521.

This confers essentially identical authority upon the District of Columbia Court of Appeals over the practice of law, as is exercised by the Supreme Courts of the states, a detailed discussion of which is contained in Judge Delhant's outstanding opinion in Niklaus v. Simmons, 196 F.Supp. 691 (D.Neb.1961). Pursuant to this authority of the District of Columbia Court of Appeals by rule has integrated the Bar of the District of Columbia, has approved such rules and regulations as it deemed necessary to carry out the provisions of its rule relating to the Unauthorized Practice of Law in the District of Columbia, and has appointed the Committee on the Unauthorized Practice of Law, the members of which are the appellees here.

The District of Columbia Court of Appeals Rules relating to the Unauthorized Practice of Law were promulgated following the establishment of the Court by the District of Columbia Court Reorganization Act of July 29, 1970, P.L. 91-358, 84 Stat. 475, D.C.Code 11-101 et seq. See specifically, § 11-701 et seq. The Rule in force when this action was started was adopted on September 28, 1973 and is set forth in the margin.7

Paragraph (5) of that rule expressly recognized the right of practitioners who are duly authorized to appear before federal agencies to do so without being required to become members of the District of Columbia Bar but prohibited persons who were not enrolled to practice law in the District of Columbia from regularly engaging in the practice of law in the District of Columbia, or in holding themselves out in any manner as so authorized or qualified.

The 1973 rules were subsequently modified in some respects on November 6, 1975. Since the events here transcended both rules the modified rules are also set out.8 After amendment the prohibition against nonadmitted persons from regularly engaging on the practice of law or from holding themselves out as authorized to do so was retained in haec verba, but paragraph (5) was replaced with paragraph (7) reading as follows:

(7) Nothing herein shall prohibit any person from practicing before any department, commission, or agency of the United States to the extent that such practice is authorized by any rule or regulation of any such department, commission or agency, provided the person is not otherwise regularly engaged in the practice of law in the District of Columbia or is not in any manner, except as permitted by the license granted by such department, commission or agency, holding himself out as authorized or qualified to practice law in the District of Columbia without having become an enrolled active member of the Bar. This rule shall not be construed to repeal, supersede or modify any law, rule or regulation which relates to practice before any department, commission or agency of the United States.

On July 18, 1975 when appellant's complaint was filed, the Rules of the District of Columbia Court of Appeals set forth a description of some of the acts which constituted the "practice of law."9 This Rule was subsequently amended on November 6, 1975, as set forth above.10

(B) The Simonses' Practice.

On April 12, 1974 the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law sent a letter to Mr. Simons pointing out that the District of Columbia Bar had furnished the Committee with his name as one of the persons who through "some type of listing, such as the telephone directory, appear to be holding themselves out as attorneys in the District of Columbia"11 in possible violation of Rule 46 II (b)(6).

Mr. Simons responded by a letter dated April 17, 1974 that he was admitted to practice in the New York State Courts, the Supreme Court of the United States and the United States Courts of Appeals for the District of Columbia, Fifth and Tenth Circuits. He also asserted that his practice was before the federal agencies, primarily the Federal Power Commission, and the federal appellate courts on review of federal agency actions. While acknowledging that he was not admitted to practice before the local courts in the District of Columbia he asserted that "I have never held myself out as authorized to practice before the local courts of the District of Columbia or to advise on local law nor have I at any time engaged in such practice".12 He added further, "I certainly do not regard the listing of my name as a lawyer in the Washington telephone directory as a representation that I practice, or intend to practice, in the local court system."13 He did not, however, contend that his listing in the Washington telephone directory under "Lawyers" did not constitute a "holding out (that he was) authorized to practice law in the District of Columbia."

The Chairman of the Committee on Unauthorized Practice, Mr. Edgar T. Bellinger, replied on April 24, 1974 to Mr. Simon's letter with the contention that:

We note that you are not admitted to practice in the District of Columbia and that you indicated your practice is before federal agencies.

As you are no doubt aware, if one engages in law practice in the District of Columbia or holds himself out as authorized to practice law in the District of Columbia he must be a member of the District of Columbia Bar. Law practice, of course, includes law practice involving federal agencies and Appellate Courts. It is not limited merely to appearances before the local courts or general practice involving local law.

Furthermore, it should be noted that in both the telephone book and your stationery you refer to yourself as a lawyer (with a Law office in the District of Columbia but) with no indication that you are not admitted in the District of Columbia. Both constitute means of holding out the right to practice in this jurisdiction.

Accordingly, you should take steps to become properly admitted to practice in this jurisdiction or cease any holding out as an attorney in the District of Columbia or the maintenance of a law office in the District of Columbia.14

Mr. Simon countered that the decision of the United States Supreme Court in Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963) was controlling in the matter, allowed him to so hold out and subsequently in a letter of February 17, 1975 he more fully asserted this position. Previously on December 2, 1974, Mr. Bellinger had suggested a personal conference might resolve the matter.

By letter of March 4, 1975, Mr. Bellinger set forth the Committee's understanding of Mr. Simon's position:

We understand from your letter that you take the position that your law practice is limited to administrative law practice, and that, as a result, you are not subject to the jurisdiction of the (District of Columbia) Court. You therefore are declining to seek to become qualified to practice law in this jurisdiction, and will continue your present practice. The Committee will consider the matter in the light of your response, and determine what course of action it deems appropriate under the circumstances.

Sometime later an attorney for the Simonses appeared before the Committee on July 9, 1975 and afterwards wrote a letter to the Chairman which discussed that meeting. It appears from that letter that the Committee might have taken the position that Rule 46 II (b)5 prohibits the maintenance of an office in the District of Columbia of the type which the Simonses asserted they maintained.

(C) The Simonses' lawsuit against the Committee Members.

While the matter was in this posture, on July 18, 1975 the Simonses brought the instant complaint against all the members of the Court's Committee on Unauthorized Practice of Law, for a temporary restraining order, declaratory injunction and other relief.15 The complaint alleged jurisdiction under 28 U.S.C. § 1331(a), 2201 and 2202 and alleged that the appellants did not, and had not appeared before the Superior Court of the District of Columbia of the District of Columbia Court of Appeals, or their predecessor courts and that the appellants had never rendered legal advice on any matter of local law. The complaint also alleged that plaintiffs' clients were all located outside the District of Columbia.16 The gist of the Simonses' cause of action was set forth in paragraph 8 of the complaint:

The defendants are interfering with the plaintiffs' right and license to practice before the Federal Power Commission and the Federal Courts in violation of the Supremacy Clause. Their right to practice before the Federal Power Commission and the Federal Appellate Courts are set forth in 28 U.S.C. § 2071; Supreme Court Rule 5; Federal Rules of Appellate Procedure Rule 46; United States Court of Appeals for the District of Columbia Circuit Rule 5; 15 U.S.C. § 717 o; 18 C.F.R. § 1.4.

The complaint also broadly alleged violations of the plaintiffs' rights under the Fifth and Fourteenth Amendments, and of plaintiff's right to freedom of travel, speech and association. The complaint further alleged that the defendants were denying plaintiffs due process of law by stigmatizing them as being engaged in the unauthorized practice of law.

(D) The Relevant Issues.

The procedural history of the Simonses' action is set forth in detail in Judge Richey's opinion and it is unnecessary to duplicate it here. As there indicated we are dealing with the Simonses' appeal from the grant of summary judgment dismissing their complaint. At the time the complaint was filed the Committee had decided to drop the Bar Association's complaint. Two views are now advanced which would have us arrive at different results in deciding the appeal. One view is that the Committee and its acts are to be characterized in the investigatory/advocatory dichotomy as being investigative in nature and entitled only to qualified immunity. The other view is that the character of the Committee and its acts when considered in the same dichotomy are quasi-judicial in character. According to this view the Committee had sufficiently focused on a particular case so that absolute immunity attaches to the Committee's actions.

I agree with this latter conclusion because I do not consider the Committee's acts to have been in the investigative category. So far as the suggested dichotomy is concerned the investigative phase of the case was completed, by the Bar Association, before the Committee began its consideration of the matter. Under such circumstances, since the Committee was exercising actual judicial authority, as delegated to it by the Court of Appeals, it is unnecessary to engage in any dissection of the Committee's action into investigatory and advocatory activities.

This matter came before the Committee for decision when the Bar Association reported to the Committee that the Simonses were not admitted to the D.C. Bar, yet were listing themselves in the District of Columbia telephone directory as "Lawyers". Following a letter from the Committee, the Simonses admitted these facts but contended their listing was proper because they limited their practice to federal courts and agencies before which they were admitted to practice. That was all the investigation that was necessary before the Committee could proceed to hear the matter and decide what course to take. The essential issue to be decided was whether such unrestricted "holding (themselves) out" within the District of Columbia as "Lawyers" was a sufficient showing of probable cause of a violation of the Rule to justify a decision that the case should be presented to "a judge of (the District of Columbia Court of Appeals) designated by the Chief Judge and (the decision thereon would be) subject to review in the usual appellate practice upon application . . ."17.

In hearing that matter and making the decision that the matter should be dropped the members of the Committee were acting in substantially the same capacity, and making essentially the same decision as a Magistrate in a preliminary hearing, i. e., determining whether probable cause had been shown that a violation had been committed. If the matter under consideration had been more egregious, the Committee could have been considered to be acting in much the same capacity as a Grand Jury which generally only considers felonies.

In functioning as it did the Committee members were acting in a judicial capacity and are entitled to absolute immunity. The case had proceeded beyond the stage where it was investigatory. In this latter respect I agree with Judge Richey's opinion that the type of investigation that is referred to as being subject to only qualified immunity is that akin to police work, search and seizure, and the like.

The court in Briggs v. Goodwin, 186 U.S.App.D.C. 179, 189, 569 F.2d 10, 20 (D.C.Cir. cert. denied 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1977)), stated:

As the Supreme Court observed, the Ninth Circuit's affirmance in Imbler deliberately left undisturbed earlier decisions in that court and others which had held that prosecutors are entitled to only a qualified immunity for conduct performed in an investigative or administrative capacity.

The court then cited the following cases; the material in brackets summarizes the nature of the conduct being examined in each action: Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (D.C.Cir.1977) (alleging planning of mass arrests during demonstration); Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974) (alleged wiretapping using warrant obtained using perjured testimony); Hampton v. Chicago, 484 F.2d 602 (7th Cir. 1973) cert. den. sub nom. 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974) (alleged prosecutor participation in police raid on apartment occupied by Black Panthers with intent to deprive occupants of constitutional rights); Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), rev'd. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) and vacated Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974) (allegations that prosecutor used criminal justice system to break boycott by blacks against white merchants allegedly engaging in racially discriminatory treatment); Dodd v. Spokane County, 393 F.2d 330 (9th Cir. 1972) (allegations that prosecutor conspired with police through intimidation to coerce plaintiff to testify falsely in criminal trial); Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) (alleged malicious prosecution to coerce confession); Tomko v. Lees, 416 F.Supp. 1137 (W.D.Pa.1965) (alleged coercion by prosecutor and police to force plaintiff to act as informant); Burkhart v. Saxbe, 397 F.Supp. 499 (E.D.Pa.1975) (alleged warrantless wiretapping and continuing disclosure of conversations intercepted); Madison v. Purdy, 410 F.2d 99 (5th Cir. 1969) later appeal, Madison v. Gerstein, 440 F.2d 338 (5th Cir. 1971) (allegation of conspiracy by sheriff and prosecutor to deny plaintiffs custody of their child and subjection to unlawful search); and Ames v. Vavreck, 356 F.Supp. 931 (D.Minn.1973) (alleged prosecutor involvement in raid on house and warrantless seizure of documents).

Clearly, none of these cases involve the type of activity in which the Committee was involved or remotely resembles the actions in these cases. This appeal does not present us with activity remote from the judicial process. Rather, it presents a question close to the heart of the judicial responsibility for regulating admission to the bar, and its corollary of courts policing unauthorized practice.

II. THREE RECENT DECISIONS RELATING TO IMMUNITY

The ultimate decision here brings into play three cases, two of which are from the United States Supreme Court and a case from this circuit: (1) Imbler v. Patchman, 424 U.S. 409, 96 S.Ct. 2894, 47 L.Ed.2d 895 (1976); (2) Briggs v. Goodwin, 186 U.S.App.D.C. 179, 569 F.2d 10 (D.C.Cir.1977) cert. denied sub nom. 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978); and (3) Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). A discussion of these decisions is necessary to a determination of the contradictory positions that are urged upon us by the respective parties. Imbler, a Supreme Court case and Briggs, a case in this circuit, are most strongly urged upon us in support of qualified immunity.

1. Imbler v. Patchman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) involved a damage action by a plaintiff who had been convicted of murder. The plaintiff unsuccessfully petitioned a state court for a writ of habeas corpus on the grounds of newly discovered evidence and an allegation that the prosecutor had knowingly used false testimony in obtaining a murder conviction against him. Later, a federal court released him on a writ of habeas corpus on the same showing. He then brought an action against the prosecutor and others under the Federal Civil Rights Act, 42 U.S.C. § 1983 (1976) seeking damages for loss of liberty caused by what he alleged was an unlawful prosecution. In this action the United States District Court, the Court of Appeals and the Supreme Court all held that the state prosecutor was absolutely immune from any liability for damages sought in a civil suit under § 1983 for alleged violation of Imbler's constitutional rights. The ratio decidendi of the opinion was that limiting a prosecutor to qualified immunity would operate to deprive the public of vigorous and fearless prosecution of crimes; and often would act to prejudice convicted defendants by introducing the extraneous consideration of the prosecutor's liability for monetary damages into applications for post conviction releases that should be granted solely to ensure justice.

Notwithstanding the decision that the prosecutor was entitled to absolute immunity the opinion also discussed various aspects of some activities of prosecutors that might not be so entitled. First, the court held:

We agree with the Court of Appeals that respondent's activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. We hold only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983. 424 U.S. at 430-31, 96 S.Ct. at 995. (footnotes omitted)

Justice Powell then added the following footnote to his opinion, in which all participating Justices joined in the judgment:

We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.

424 U.S. at 431, n.33, 96 S.Ct. at 995, n.33.

2 Briggs v. Goodwin, 186 U.S.App.D.C. 179, 569 F.2d 10 (D.C.Cir.1977), cert. denied sub nom. 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978).

In the year following Imbler v. Patchman we rendered our decision in Briggs v. Goodwin, supra, which interpreted and applied the investigatory/advocatory dichotomy to deny absolute prosecutorial immunity to a Department of Justice prosecutor who was conducting a grand jury investigation. It was alleged that he had knowingly testified falsely in open court, in answer to a single question by the judge supervising the grand jury who inquired whether any government informants were among the members of the target organization who had been subpoenaed to testify as witnesses. The prosecutor's activity in so testifying in connection with the investigation was held by the court to be of an investigatory nature, rather than advocatory, and therefore to be entitled only to qualified immunity.18 Our decision recognized that the case was unique and was not within the ambit of those numerous cases that hold prosecutors generally are entitled to absolute immunity for quasi-judicial activities. The opinion recognized that:

The vast majority of cases cited (by the government) involve claims arising from prosecutorial acts which unquestionably qualify for immunity under Imbler, e. g., the decision to initiate a criminal prosecution or the orchestration of an ensuing criminal trial, 186 U.S.App.D.C. at 191, 569 F.2d at 22 (footnote omitted).

3 Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).

Nine months after our decision in Briggs the Supreme Court issued its opinion in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). This lawsuit sought damages from officials of the Department of Agriculture following an unsuccessful proceeding brought by the Department to revoke or suspend the registration of a commodity futures commission company. Following the failure of the agency's disciplinary proceeding Economou filed an action for damages alleging violations of various constitutional rights. The defendants included the Secretary of Agriculture, the Assistant Secretary, the Judicial Officer, the Chief Hearing Examiner and the Department attorney who prosecuted the proceeding.

The District Court held that the officials were entitled to absolute immunity and on that ground dismissed the action. However, the Court of Appeals reversed, holding that the officials were only entitled to qualified immunity, a determination reversed by the Supreme Court.

The majority opinion, by Justice White, discussed several questions reserved by the Court in Imbler and stated that while qualified immunity from liability for damages should be the general rule with respect to those in the executive department, there were some officials whose special functions require the full exemption from liability afforded by absolute immunity. In applying this premise, the Court held that persons who perform adjudicatory functions within agencies, where safeguards in administrative procedures tend to assure correctness of adjudications, are entitled to absolute immunity from liability for damages for their judicial acts.

The Court also decided that agency officials who perform functions analogous to those of a prosecutor are entitled to absolute immunity to assure that prosecutorial decisions with respect to agency proceedings will be made free from intimidation or harassment. This absolute immunity was also held applicable to the acts of agency attorneys in arranging and presenting evidence in an agency proceeding. The remarks of the Court in Butz as to these particular functions are particularly pertinent here because both cases involved the acts of individuals acting for the government in disciplinary proceedings. The Court stated:

If a civil action could be maintained against a judge by virtue of an allegation of malice, judges would lose "that independence without which no judiciary (can) either be respectable or useful." . . . Thus, judges were held to be immune from civil suit "for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction." . . . 36

438 U.S. at 509, 98 S.Ct. at 2912.

The principle of Bradley (v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)) was extended to federal prosecutors through the summary affirmance in Yaselli v. Goff, 275 U.S. 503 (48 S.Ct. 155, 72 L.Ed. 395) (1927), aff'g (mem), 12 F.2d 396 (CA2 1926). The Court of Appeals in that case discussed in detail the common-law precedents extending absolute immunity to parties participating in the judicial process: judges, grand jurors, petit jurors, advocates, and witnesses. Grand jurors had received absolute immunity " 'lest they should be biased with the fear of being harassed by a vicious suit for acting according to their consciences (the danger of which might easily be insinuated where powerful men are warmly engaged in a cause and thoroughly prepossessed of the justice of the side which they espouse).' " Id. (12 F.2d), at 403, quoting 1 W. Hawkins, Pleas of the Crown 349 (6th ed. 1787). The court then reasoned that " '(t)he public prosecutor, in deciding whether a particular prosecution shall be instituted or followed up, performs much the same function as a grand jury.' " (Id.), 12 F.2d, at 404, quoting Smith v. Parman, 101 Kan. 115 (116), 165 P. 663 (1917). The court held the prosecutor in that case immune from suit for malicious prosecution and this Court, citing Bradley v. Fisher, supra, affirmed.

We recently reaffirmed the holding of Yaselli v. Goff in Imbler v. Pachtman (424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)), supra, a suit against a state prosecutor under § 1983. The Court's examination of the leading precedents led to the conclusion that "(t)he common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties." (Id.), 424 U.S., at 422-423 (96 S.Ct., at 991). The prosecutor's role in the criminal justice system was likely to provoke "with some frequency" retaliatory suits by angry defendants. Id., at 425 (96 S.Ct., at 992). A qualified immunity might have an adverse effect on the functioning of the criminal justice system, not only by discouraging the initiation of prosecutions, see id., at 426 n. 24 (96 S.Ct., at 993), but also by affecting the prosecutor's conduct of the trial:"Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence. . . . If prosecutors were hampered in exercising their judgment as to the use of . . . witnesses by concern about resulting personal liability, the triers of fact in criminal cases would often be denied relevant evidence." Id., at 426 (96 S.Ct., at 993).

In light of these and other practical considerations, the Court held that the defendant in that case was entitled to absolute immunity with respect to his activities as an advocate, "activities (which) were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force." Id., at 430 (96 S.Ct., at 995.) 37

438 U.S. at 509-511, 98 S.Ct. at 2912-2913.

We think that the Court of Appeals placed undue emphasis on the fact that the officials sued here are from an administrative perspective employees of the Executive Branch. . . . Absolute immunity is . . . necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.

We think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages.

438 U.S. at 511-513, 98 S.Ct. at 2913-14. (emphasis added) And in my view the court's Unauthorized Practice of Law Committee in passing initially on complaints against lawyers was acting more judicially than federal administrative agencies in their adjudications.

There can be little doubt that the role of the modern federal hearing examiner or administrative law judge within this framework is "functionally comparable" to that of a judge. His powers are often, if not generally, comparable to those of a trial judge: he may issue subpoenas (19, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. See § 556(c). More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency.

438 U.S. at 513, 98 S.Ct. at 2914.

In light of these safeguards, we think that the risk of an unconstitutional act by one presiding at an agency hearing is clearly outweighed by the importance of preserving the independent judgment of these men and women. We therefore hold that persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Those who complain of error in such proceedings must seek agency or judicial review.

438 U.S. at 514, 98 S.Ct. at 2915.

We also believe that agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts. . . . Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, we hold that those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision.

438 U.S. at 515-516, 98 S.Ct. at 2916 (emphasis added). The statement in italics has particular application here.

We turn finally to the role of an agency attorney in conducting a trial and presenting evidence on the record to the trier of fact. We can see no substantial difference between the function of the agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court. 40 . . . We therefore hold that an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence.

438 U.S. at 516-517, 98 S.Ct. at 2916 (emphasis added).

The upshot of the Supreme Court's decision in Butz v. Economou was to remand the case to the Court of Appeals and the District Court to apply the principles enunciated in its opinion. On remand, as Judge Richey's opinion notes at page 28, the only individuals in the Department of Agriculture who were held not to be entitled to absolute immunity were two auditors for whom absolute immunity was never claimed. Butz v. Economou, 466 F.Supp. 1351, 1360 (S.D.N.Y.1979).

It is apparent that Butz decided some of the immunity issues with respect to prosecutors and other participants in enforcement proceedings that were left open in Imbler. It is also apparent that the members of the Court appointed Committee on the Unauthorized Practice of Law were clearly exercising delegated judicial authority when they were required to determine whether probable cause had been shown that the Simonses by their telephone listing and stationery, were holding themselves out as practicing law in the District of Columbia in violation of the Court's Rules. Accordingly, reasoning a fortiori from Butz and because this case is distinguishable from Briggs,20 I concur in the conclusion that the members of the Court's Committee are entitled to absolute immunity.

Our opinion in Briggs issued on September 21, 1977 and the Supreme Court issued its opinion in Butz v. Economou, supra, nine months later on June 29, 1978. Butz is thus controlling as the latest decision on the subject and its facts are closer to the Simonses' case than were the facts in Briggs. Both Butz and Simons involved attempts by supervisory boards to discipline persons who were subject to their jurisdiction although in both instances no person was disciplined, yet damage suits were subsequently brought against those members of the government who participated in the aborted proceedings. In Butz the board and others active in the disciplinary proceeding were found to be exercising a quasi-judicial function and entitled to absolute immunity even though they were all members of and appointed by, the executive branch of government. In Simons all persons involved were appointed by the judiciary and they were performing inherently judicial functions that had been specifically delegated to them by the court. They were also compensated by the court for their services and expenses. Butz v. Economou holds that federal executive officials only have qualified immunity except where they show a special need for a full exemption from liability. In that case the special showing that was deemed sufficient to justify absolute immunity for the involved officials is more than duplicated by the Committee members here, even if we were to treat them as prosecutors. In addition, the Committee members here were performing a judicial function of the utmost importance as duly appointed officers of the Court to serve for regular terms.

If the members of the executive branch who participated in the disciplinary proceeding in Butz were entitled to absolute immunity, here the court appointed committee members carrying out an inherent judicial responsibility were even more entitled to absolute immunity. The Committee's action here is more distinctly judicial than that involved in Kissell v. Breskow, 579 F.2d 425 (7th Cir. 1978) where the Executive Secretary of the Disciplinary Commission of Indiana (a state agency consisting of members appointed by the Indiana Supreme Court) was held entitled to quasi-judicial immunity in referring a grievance involving an attorney to the Disciplinary Commission of the state Bar in alleged violation of constitutional rights of one of his clients.

In reaching the above conclusion it is unnecessary to go to any length to distinguish Simons from Briggs. The two cases distinguish themselves by the nature of the official behavior that was subject of the appellants' complaints. In Briggs the claim was made that the prosecutor exceeded his authority by committing a criminal offense when testifying as a witness in connection with a grand jury investigation that he was conducting. The court held such conduct to be investigative, not advocatory, and so entitled only to qualified immunity. In Simons we find that the Committee was merely making the judicial determination as to whether probable cause was shown to support a complaint from the Bar Association that the Simonses were in violation of the Court's Rules on practicing law. The Committee decided that the Simonses' conduct did not justify further proceedings. It is thus not necessary to further consider the investigatory/advocatory dichotomy. With respect to Briggs it should also be stated, as Judge McGowan's opinion recognizes, that such case represented an exception from the "incontestable" general rules that "prosecutors enjoy absolute immunity for acts done in the performance of their official functions (which generally involve) the decision to initiate a criminal prosecution or the orchestration of an ensuing criminal trial." 186 U.S.App.D.C. at 191, 569 F.2d at 22. Thus, if the Committee members were likened to prosecutors the nature of the function they performed would still qualify them for absolute immunity.

My conclusion is also supported by a long line of cases which apply the rule of absolute immunity for quasi-judicial activity to a number of situations involving noncourt personnel who were acting more remotely from direct judicial authority than the Committee members here. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislators); Butz v. Economou, supra, (Agriculture Department Officials); Bershad v. Wood, 290 F.2d 714 (9th Cir. 1961) (Internal Revenue Service Agents); Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966) (en banc) cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967) (Prosecutor for indictments obtained against minor); Brown v. Dunne, 409 F.2d 341, 343 (7th Cir. 1969 (Court clerk); Dieu v. Norton, 411 F.2d 761, 763 (7th Cir. 1969) (Court clerk and court reporter); Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970) cert. denied 403 U.S. 908, 91 S.Ct. 2217, 29 L.Ed.2d 685 (1971) (Probation officer and court-appointed psychiatrist in submitting reports); Pope v. Chew, 521 F.2d 400, 405 (4th Cir. 1975) (Probation officer in submitting parole and pardon recommendations); Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975) (legislators); Hoke v. Board of Medical Examiners of State of North Carolina, 445 F.Supp. 1313 (W.D.N.C. 1978) (Medical examination board); Woolridge v. Virginia, 453 F.Supp. 1333 (E.D.Va.1978) (Welfare Commissioner preparing adoption recommendation at court's direction).21

A judge is absolutely immune for all acts performed within his jurisdiction, even from actions under the civil rights laws. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).

A distinction between judges of superior and inferior courts is made but only on the basis of the extent to which a judge may stray from his jurisdiction and still be protected by absolute immunity. A judge of a court of superior or general jurisdiction is not liable for any acts so long as he has not acted in clear absence of all jurisdiction. Id. at 355-57, 98 S.Ct. 1099. A judge of a court of inferior of limited jurisdiction enjoys absolute immunity so long as acts are taken within his jurisdiction. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872), McClain v. Brown, 587 F.2d 389, 390 (8th Cir. 1978).

Judicial action extends beyond those activities which are at the core of the judicial process, such as trying cases or deciding appeals; a judicial acts is one which "may normally be corrected on appeal." Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir. 1974). Since judicial immunity extends to state Supreme Court Justices in actions arising out of disbarment proceedings, Gately v. Sutton, 310 F.2d 107, 149 (10th Cir. 1962), should court-appointed Committee members acting within the parameters of their assignment be accorded only a qualified immunity standard?

An immunity claim is evaluated not on the title of the officer but on whether the conduct complained of involves the "performance of a judicial or quasi-judicial function." Hoke v. Board of Medical Examiners of State of N. C., 445 F.Supp. 1313, 1314 (W.D.N.C.1978). The immunity afforded the Committee must be assessed on the basis of the Committee's function. That analysis causes me to conclude that absolute immunity is the appropriate standard to be applied here and that, as a result, the district court properly granted summary judgment for the defendants. Accordingly, I join in the judgment affirming the District Court.

This appeal raises the question whether members of the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law are entitled to absolute or qualified immunity in a suit alleging deprivation of constitutional rights in the course of an investigation. The district court did not specifically address this issue, but entered an order granting summary judgment to appellee members of the Committee, concluding that "this Court is satisfied that the actions of Defendants in investigating Plaintiffs' practice of law were reasonable and within their lawful authority." Although I agree that the Committee's actions were within the scope of its lawful authority, I believe that qualified immunity is the appropriate standard here, and that summary judgment on that basis was not warranted by the record. Therefore I would reverse and remand for further proceedings consistent with a qualified immunity standard.

The District of Columbia Court of Appeals is authorized by statute to "make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion."1 The Committee on Unauthorized Practice of Law, "consisting of six members of the Bar of (that) Court," was accordingly established by Rule 46 II (a) of the District of Columbia Court of Appeals. The members are appointed by the court of appeals, serve staggered three-year terms, and are to receive "such compensation and necessary expenses as the Court may approve."2 The Committee is empowered, "(s)ubject to the approval of the Court (to) adopt such rules and regulations as it deems necessary to carry out the provisions of this rule."3

The Committee is to enforce Rule 46 II (b):

(1) No person shall regularly engage in the practice of law in the District of Columbia or in any manner hold himself out as authorized or qualified to practice law in the District of Columbia unless he is an enrolled active member of the Bar.

Rule 46 II (b)(6)-(7) excepts from this general prohibition persons practicing before courts and agencies of the United States in the District of Columbia to the extent authorized by those bodies.4

Further, the Committee may commence proceedings seeking contempt penalties and/or injunctive relief for violations of this rule. The proceedings are to be held before a judge designated by the chief judge and are "subject to review in the usual appellate practice."5

The duties of the Committee are made clearer in its own rules. Committee Rule A deals with investigations. It provides that in the course of an inquiry, the testimony of any witness the Committee deems relevant may be taken. "Such testimony may be taken under oath. Any transcript of the testimony shall be for the use of the Committee." Witnesses are allowed to have counsel present at the inquiries. In addition, "(a)ttendance of witnesses may be compelled by subpoena upon application therefor to the Chief Judge . . . ."6

Another Committee rule lists four types of action that may be taken by the Committee. They are: "(1) to close an inquiry without further action, (2) to accept voluntary compliance from the person or persons concerned, (3) to issue a formal opinion, and/or (4) to petition the Court for a Rule to Show Cause in accordance with Rule 46 II b . . . ."7

It is the Committee's conduct prior to and during an investigation apparently authorized by Committee Rule A that gives rise to this action.

Appellants Morton L. Simons and Barbara M. Simons are admitted to practice before the courts of New York State, the Supreme Court of the United States, the United States Courts of Appeals for the District of Columbia, Third, Fifth, and Tenth Circuits, as well as various federal regulatory agencies. They have maintained offices in the District of Columbia since 1962 to facilitate their practice before those federal courts and agencies, although they are not admitted to the Bar of the District of Columbia Court of Appeals.

Appellees, the Chairman and members of the Committee on Unauthorized Practice of Law, are attorneys and members of the District of Columbia Bar. In April 1974 the Chairman wrote to Mr. Simons informing him that Simons' listing in the local yellow pages conveyed the impression that he was holding himself out as authorized to practice in the District. The letter requested "prompt written advice as to whether or not you are a registered member of the District of Columbia Bar, and if so, your status, Bar number, and date of admission to the Bar."

Responding, Simons informed the Chairman that he was admitted to practice in New York and before various federal courts and agencies, but "not admitted to practice before the local courts of the District of Columbia." He wrote, "I certainly do not regard the telephone listing as a representation that I practice or intend to practice in the local court system. Rather the listing is intended as a convenience to other federal agency practitioners in locating my phone number, just as I find it a convenience to use the listings to locate theirs."

if one engages in law practice in the District of Columbia or holds himself out as authorized to practice law in the District of Columbia he must be a member of the District of Columbia Bar. Law practice, of course, includes law practice involving federal agencies and Appellate Courts. It is not limited merely to appearances before the local courts or general practice involving local law.

Furthermore, it should be noted that in both the telephone book and your stationery you refer to yourself as a lawyer with no indication that you are not admitted in the District of Columbia. Both constitute means of holding out the right to practice in this jurisdiction.

Accordingly, you should take steps to become properly admitted to practice in this jurisdiction or cease any holding out as an attorney in the District of Columbia or the maintenance of a law office in the District of Columbia.

The letter then requested further advice of Simons' plans of compliance with the rule.

In subsequent letters and a meeting with the Chairman, the Simonses argued that the local rule did not apply to their federal practice, based on the language of the rule and the Supreme Court opinion issued in Sperry v. Florida.8 They did, however, express a willingness "to carry a notation on (their) letterhead (and in the telephone book also, if feasible) indicating that (their) practice (was) exclusively before the federal courts and agencies."

The Chairman then instituted a proceeding to "develop pertinent facts relating to the question of whether (the Simonses) were or were not" in violation of Rule 46 II. A subpoena issued commanding the presence of Mr. Simons at a hearing of the Committee scheduled for 18 June 1975; the hearing was later rescheduled for 9 July 1975. Simons did not appear personally there, but was represented by counsel. Counsel requested a statement of (1) the matters considered to be in issue, and (2) the procedures to be followed by the Committee in the case. She said if both the requests were granted, Simons would appear voluntarily.

This action was filed on 18 July 1975, shortly after t