*1 had court the trial Having concluded objections rule on the
jurisdiction there has no
interrogatories and that been law, as matter of we of discretion
abuse prohibition
quash provisional rule in
previously issued.
All concur. ex rel. GREAT AMERICAN
STATE al., Relators, CO. et
INSURANCE SMITH, Laurence R.
The Honorable
Judge Court of Jackson of the Circuit
County, Missouri, Sixteenth Judicial Cir-
cuit, 12, Respondent. Division
No. 60812. Missouri,
Supreme Court of
En Banc.
Dec. *2 by
written relators which covered the con- tents, improvements leasehold and business interruption premis- for Cannova’s business After es. the fire Cannova and Mid-Conti- City, nent National Bank Kansas Missou- (Mid-Continent), ri payee loss in the policies, described notified relators of the damage fire loss proof and furnished loss each relator. employed Adjust-
Relators the General (GAB) investigate ment Bureau the loss. Attorney Risjord John law C. of the firm of Niewald, Waldeck was then employed contacted and to assist in investi- gating the origin the loss and to rep- resent relators connection with the being against claims by asserted them Can- nova and Mid-Continent. 31, 1974, May rejected
On relators proofs of by loss letter from to Gene DeLeve, attorney for Cannova and Mid- Continent. The claims were denied on the Barker, Risjord, K. Kan- John C. Ronald ground that the loss was of incendiary ori- for relators. City, sas gin. DeLeve, Weiss, A. Kansas Gene Ronald S. August 9, On Cannova and Mid- respondent. City, for against relators, Continent filed suit alleg- Jr., Fremont, Van- Ernest H. Wm. Dirk ing that their pay refusal the amounts Baker, Jr., dever, Russell W. Neil Ger- due under policies the fire insurance was Palmer, Leonard, standt, George D. Dennis vexatious and without reasonable cause. In City, Kansas for amicus curiae. Counts I they sought and II to recover the policies face amounts plus damages, FINCH, Judge. attorney’s fees and interest.1 Relators’ an- swer, filed by attorney Risjord, raised the original prohibition action in is the affirmative defenses of arson and false in this for the proceeding second such court swearing. resolving issue of whether purpose claims, concerning three letters fire loss response interrogatories, to written by compa- an written insurance 56.01(b),2 submitted each under Rule of the represents (relators), protected nies he are relators the person identified who made the discovery privi- decision on its behalf to deny claims make lege. permanent previously submitted Cannova and Mid-Continent. provisional prohibition. issued Depositions of those were individuals sched- they On December restaurant uled and subpoe- were commanded files, nightclub Enterprises, produce nas duces papers, owned Cannova tecum to documents, (Cannova) destroyed correspondence Inc. was fire. Can- records and con- cerning investigation policies nova in effect fire insurance fire had incendiary against origin was a third were There count Cannova libelous. The trial court Niewald, Risjord judgment summary and the law firm of sustained a motion as recovery sought wherein was to this claim. and Waldeck 31, 1974, May in the the basis that statements denying letter the claim because the loss 2. All references to rules are to V.A.M.R. ed, reasonably calculated to lead to deposi- During the action thereon. of admissible evidence he con- tions, was asked what each witness issue vexa- of defendants’ denying claim. Each related sidered before plaintiffs pay letters attor- tious refusal three written testified that they were included have a substantial need ney to relators shown *3 preparation These consisted of the of material reviewed. the materials 12, 1974, February an they undated their and that are unable with- letter dated case Risjord hardship testified was written the out undue to obtain substan- letter 1974, a letter April, and during March tial of the materials equivalent 28, the May justice require 1974. Production the dated means. Interests was by the witnesses reviewed produced material to be notwithstand- documents All been fur- requested. has since then ing lawyer-client privilege ex- claim Risjord from the three letters except nished cept any portions Court for the deems which, counsel, refused on relators advice following excluded inspection should be they that were furnish for the reason to of the documents.” attorney- communications sought Following pro- this order relators privilege. court, ex rel. hibition. in State Great Mid-Continent for Cannova and Smith, Counsel 563 Company American Insurance directing the a court order next moved for (Mo. 1978), S.W.2d62 banc announced stan- the three letters from produce witnesses to determining dards for whether communica- held, hearing was after which Risjord. A protected tions are from this court entered order: attorney-client privilege and held that judge to trial should examine the having oral motion letters “Plaintiffs made whether, Schurkamp, George camera to determine under the require Raymond announced, Mathiesen the letters should be Freeseman and William L. standards produced companies to for examination respective insurance Cannova were on Those standards produce certain described documents Mid-Continent. 2320, Wigmore, based 8 J. Evidence taking depositions, of their on §§ 1961) (McNaughton rev. 491.- having given Court full consideration same, 060.3 that each “IT IS HEREBY ORDERED decision, respondent di- Following that produce at of aforementioned witnesses three rected relators to deliver the letters to subject deposition, taking him for inspection. in camera Pursuant stated, all hereinafter docu- the condition order, produced that letters were at a ments, subpoenae, that described 22,1978. hearing respondent May before earlier, 31,1974 but is May are dated transcript proceeding of that shows documents required produce those he stated that after fire 31, May bearing subsequent to a date was GAB and the contacted relators 1974. relators; Risjord represent asked also that, at “IT FURTHER ORDERED IS question three were said that the letters counsel, any of option of defendants’ response rela- requests written in from required to be documents
aforementioned concerning my “to tors advise them to this produced, may presented first be investigation, they toas where stood on viewing by Judge, who Court for law, keep periodically and to them ad- right pre- to exclude reserves the opinion and give my vised and them deposition any portions of sentation at being on the claim which was * * in- to which respect said documents Risjord’s explanation made was justice require exclusion. terests of questioned hearing by at the counsel for respondent nothing contrary that aforemen- “The believes Court documents, produc- presented to the court. required to be tioned statutory indicated. unless otherwise
3. All
RSMo
references
are to
matter,
following
hearing, re-
day
up delivering
On the
I will hold
findings
copies
spondent made
and conclusions
until June
letters.
find-
with reference to the
These
Respectfully,
conclusions were set out in a com-
ings and
as follows:
munication
counsel
Smith,
Laurence R.
“Gentlemen:
12”
Judge, Div.
22, 1978,
May
Mr.
deliv-
“On
Thereafter,
again sought prohibi-
Court)
(the
copies
me
three
ered to
provision-
tion in this
court.
issued our
question (written by
Mr.
letters
prohibition
al rule in
to which a return was
companies),
to the defendant
insurance
filed. We then invited counsel
make
May
to this
order of
pursuant
Court’s
(1)
suggestions in their briefs as to
inspection by
me.
in camera
changes,
any,
should be
in the
made
“I
read these letters and find
*4
prior
in
reported
announced
decision
at
they basically contain:
(2)
procedure
563 S.W.2d
investigation made on
1. Results of
appellate
should be utilized at the
level to
Risjord
firm.
behalf of Mr.
and his
in
review
decisions of
trial
camera
a
court
Conclusions,
impres-
opinions and
2.
as to
particular
attorney-client
whether
con-
Risjord
of Mr.
and his firm
sions
communications are
The court
investigation
cerning
of the
the results
granted
request
also
the Missouri Bar’s
to
handling
of the case.
file a brief
curiae in
amicus
the case. After
Risjord
Recommendations of Mr.
3.
considering
briefs
transcript
those
and the
concerning
his firm
action to be
case,
in this
as well as the
briefs
tran-
to
taken with reference
the case.
in the
script
prohibition proceeding,
first
we
any
any
of the
“I do
find in
letters
decision,
have decided to overrule our prior
information
to Mr.
any
given
to
reference
reported at 563
to
S.W.2d
hold that
clients,
their
or his firm
the three
from
letters
companies,
any
or
defendant
insurance
are
and not
to discovery.
reference
firm
letters
preme
made
I
guide,
ney-client
attorney-client privilege,
nication
attorneys.
find
“Using
‘(1)
to him
any
companies concerning any
I do not
any
Court of Missouri en banc
made
“concerns
relation;
indication
matter to be
insurance
communication
majority opinion of the Su-
find
or
client” in the attor-
any communication
in any
of any
companies.
companies to their
(2)
to-wit, nothing
contains
advice
made
of the three
commu-
Nor
given
as a
“his
do
from the
nition
legislature
See
petent to testify:
8 J.
(3) An attorney,
munication made to him his client in
without
“The following persons shall be incom-
[******]
provides,
of that
Wigmore, supra,
relation,
reign
has enacted a
attorney-client
common
of Elizabeth I
in
consent of
part:
or his advice
concerning
law
statute,
§
2290.
privilege dates
privilege,
such
of
§
any
In recog
England.
thereon,
491.060,
client;”
.com-
foregoing
section has been held in a
thereon”;
(3) could lead to “the
appeals
declaratory
court
to be
of the
as admissions
use of
statements
the common law
Bussen Del
rule.
v.
Com-
client”;
(4)
lead “to inferences
could
mune,
Mo.App.
239
383 empha- competent vant and evidence cannot be Wigmore Dean policies. mental need to have the fundamental societal sized admitted.” having value probative rational all evidence Louisell, (Footnotes omitted.) also See in lawsuit. the trier of facts placed before “Confidentiality, Conformity and Confu- Jeremy argued against Bentham’s he While Privileges Today,” sion: in Federal Court privilege that the suggestion (1956). 101 Tul.L.Rev. abolished, exception regarded as an he it analysis of the funda We find to be the more funda- to what he considered underlying attorney-client policy mental rule, to be “ought and one which mental preferable Wig- possi- strictly within the narrowest confined clearly There societal need for more. of its logic with the ble limits consistent persons employ to be able to and consult supra, 2291 at Wigmore, 8 J. principle.” persons trained the law for advice guidance legal as to matters. As rec empha- policy fundamental A different Simeone, ognized by & confidentiali Sedler “Privileges & Simeone sized Sedler ty of the communications between client of At- of Evidence: The Realities the Law such is essential for relation Confidences,” 24 Ohio torney-Client St.L.J. ships to be fostered and be effective. (1963). acknowledge While the authors sowas considered at common law as shown Wigmore’s attorney-client privilege view of following Annesley case of exception policy as an disclosure Anglesea, Earl How.St.Tr. 1139 *5 evidence, confidentiality of they view all (Ex. 1743), which the Mr. in Honourable attorney communications between Mounteney Baron said at 1241: policy, the more fundamental client as is exception. which disclosure business, legal of increase “[A]n part duty based in on the of a view is inability parties to transact that busi- confidences, preserve a client’s themselves, necessary ness made it very limited of disclo- employ persons . them sure, imposed which is Canons might who that transact business for The greater Ethics. societal Professional necessity them. That introduced is to the confidentiality need for attributed it the of what the law necessity hath giving relationship client in established, very justly an inviolable se- secrecy in has relationship advice —a which attornies, in crecy to be observed order always sup- important. been considered safe for clients to render it communi- attorney-client privilege, port of broad attornies, proper cate their instruc- at p. states 3: the article carrying tion for the on those causes long society recognizes as our “As they ne- found themselves under a relating to the law advice as to matters cessity intrusting to their care.” persons trained in the given by should be present complexity nature and is, by lawyers anything law —that — justice system relationships and the materially interferes with that relation- among people people and between the eliminated, and ship must be restricted or government preservation make anything the success of that that fosters protection attorney-client privi- of the be retained relationship must lege If even more essential. this is to be and the strengthened. relationship accomplished, when one undertakes to con- giving legal of the existence continued in fer confidence with an whom he accurately and effec- by persons advice employs particular in connection with greater is of tively trained the law hand, all of matter at it is vital that submitted, value, it than the societal the client to the and what the says given piece of a of evidence admissibility lawyer says to the client to be treated as Contrary to the in a particular lawsuit. attorney- confidential and implied the evidence author- assertions of ities, privilege. fall if all rele- This what a client ex- the heavens will not pects. A rule of attorney-client privilege concerning ences the tenor of what enough goal broad to achieve this client had said to him. Law Institute. ALI Model Code of Evi- dence, “As used in Rules 210 to adopted by [******] Rule 209(d) the influential American (1942) provides: 213,4 jective for which the privilege was created client communications to accomplish the ob- tion for approach We are of does not confidentiality provide that the Wigmore enough protec- attorney-
(d) ‘confidential communication between and now exists. Under Wigmore ap- lawyer’ client and means information proach, not lawyer’s all of a advice is confi- transmitted a voluntary act of dential, and statements the lawyer disclosure between a client and his which are not in the nature of advice are
lawyer confidence and a means totally unprotected, except to the extent which, aware, far so client is they disclose what the client has said. discloses the information to no third This is demonstrated judge’s trial persons reasonably other than those analysis of the letters wherein he necessary for the transmission of the advised that copies he would deliver of the information or the accomplishment Risjord letters to counsel for Cannova. He Comment on Clause [******] transmitted. purpose for which it was (d): reference to ney by the Risjord letters did not mention any commu- stated that he did not information insurance find companies given the letters to the attor- and the any A communication means information nication he had received from compa- means; voluntarily by any transmitted said, nies. The letter then “Nor do I find to be confidential it must transmit- any indication of any given to the way ted in confidence and in such a companies concerning any communication not, knowledge that it will of the made by companies to their attorneys.” client, persons disclosed to third words, In other anything said by the attor- *6 reasonably whom disclosure is not nec- ney to his clients about the matter he was essary to make the communication ef- handling for them would not be treated as accomplish purpose. fective or to its confidential unless it was advice on infor- Communication between client and actually mation conveyed by the clients to lawyer only includes not a communica- the attorney or what was said dis- would lawyer tion from client to but also a close what the clients had told the attorney. lawyer communication to client.” from consultation, All and advice is (Emphasis supplied.) protected not Wigmore under the view. Wigmore approach, adopted The in our goes When a client attorney to an 62, reported
decision
at 563 S.W.2d
is nar-
and asks him represent
to
him on a claim
rower than that of the ALI Model Code of
which he believes he
against
has
someone or
protect
Evidence.
It would
the confiden-
being
him,
which is
asserted against
even if
tiality
says
of all of what the client
yet
he as
has no knowledge or information
protect
but would not
of what
claim,
the
subsequent
about
communica
lawyer says
the
to the client. Of the law-
client,
attorney
tions
the
to the client should be
yer’s
pro-
statements to his
it would
privileged.
(1)
given by
Some of the advice
only
tect
the
concern-
client,
attorney may
to him
the
be based on
ing a communication
information
(2) anything
the
said which could
obtained from sources other
be
than the client.
client,
(3)
of his
or
anything
attorney says
an admission
Some of what
will not
actually
that would lead to infer-
be advice as to a
said
course of conduct
actually
attorney-
4. Rule 210
establishes
vides for
termination
and Rule 231 covers
211, 212,
privilege,
provide
Rules 211 and 212
for
waiver. Rules
213
and 231 are not
instances,
pro-
presented by
exceptions
Rule 213
involved in
in certain
the issue
this case.
leged
not
analysis
reports
Part
of
would
cause
GAB
may be
to be fallowed.
i;
date
the situation.
to
of
the FBI letter to become
known
may
a discussion of additional ave-
privilege. They
Part
be
still would
attorney-client
may be keeping
Part
pursued.
56.01(b).7
nues
be discoverable under Rule
opinions
things
of
advised
done
scope
discovery
of
under ex
All of these communica-
formed
date.5
isting
sufficiently
rules
decisions
tions,
advice,
essential ele-
just
are
comprehensive
parties
litigation
to afford
of
consultation. AH
ments
ample
securing
means of
factual and other
be protected.6
should
preparation
data
and trial of a
needed
not mean that discoverable
This does
case it has enabled
case.8 In this
Cannova
can made
factual information
investigative reports,
to obtain the GAB
attorney or the
by being recited
expert reports, investigatory
photographs,
client in their confidential communications.
specialists, names wit
reports by arson
of
attorney-client communica
Only the actual
nesses,
including
FBI
and other items
example, in this
For
tions
report
City.
to the Chief of Police Kansas
investigation
had an
case
deposition
Cannova also has taken the
made GAB which made various re
fire
representatives
the FBI
as well as
agent
addition,
the FBI con
ports to relators.
only
sought
things
relators.
but
persons
preceding
ducted surveillance
obtained
Cannova are the three
at
restaurant on December
fire
Cannova’s
letters
relators.
are not
sought
Those
investigation
further
made
after
provide Cannova with information as to
fire,
report
and submitted a written
how
fire
or with
occurred
names
investigation
covering that surveillance and
potential
knowledge
witnesses with
as to
McNamara,
City
then
to Dr.
Kansas
Chief
how
wants
the fire occurred. Cannova
Police,
January 18,
A copy
1974.
these letters to learn what
said to
report
by Risjord. It and
was obtained
about
he
clients
the claims
had been
reports
the GAB
were furnished to Cannova
employed to handle on their
behalf.
If
pursuant
its
efforts.
these
requested
against
information is
for use
had been attached to or discussed in the
relators, the
relators on Cannova’s claim for vexatious
letters
fact
attorney’s
delay.
would be
Both Cannova’s brief and an inter-
privi-
letters
Smith,
Hence,
“Avoiding
Malpractice
product
56.01(b)(3).
Lawyer
work
under Rule
5.
Through
(pts. 1-2),
product question.
we
Communication Skill”
do not deal with
work
(1978).
J.Mo.B.
argues
8.Judge
Seiler’s dissent
“[t]he
Judge
speaks
Seiler’s dissent
of efforts
attorney-client privilege
broadened
es-
*7
protect
“preserve”
lawyers
suggests
the
proposed opinion
the
tablished
will disman-
inferentially
purpose
at least
that this is the
good part
scope
tle
the
Missouri dis-
lawyer says
protecting
what
all of
the
covery”
that
factual material obtained
says
as
what
client
well as
the client
to
attorney
reported
to his client “would
lawyer.
objective
privi-
not the
That is
privileged
become
and not discoverable.”
Instead,
lege
opinion.
opinion
as the
of this
“[ljawyers
being presented
that
are
concludes
states,
possible
people
it
make it
for
is to
to
legitimate way
disclosing
with a
to avoid
employ
confer with one trained
the law
up
has
till now been discoverable
Such
facts.”
privilege
to
in confidence. The
is for
do so
misreading
opinion.
shows a
of this
contention
client,
lawyer.
the benefit of the
not the
protecting attorney-
privilege
is limited to
opinion
states
this
will
The dissent also
that
example,
copy
communications.
client
For
greatly expand
attorney-client privilege
as
police,
of a
from the
chief
letter
FBI to the
one
it has existed in Missouri
for
hundred
copy
by Risjord,
which
was
was not
obtained
authority
support
years.
No
cited
protected by
privilege and was
discover-
As a matter of
and none exists.
contention
fact,
Risjord
able.
If
of wit-
had obtained names
opinion
this
does not broaden
fur-
nesses or taken statements
were
attorney-client privilege
it has
as
existed
client,
nished to the
the names
the state-
applied in
and been
Missouri.
ments themselves would not be
privilege
nor insulated
materials claimed
7. does not involve
case
opinion.
exempt
to be
relators
change
(1947),
between the court and counsel
“Member of Court: From what
a note which had
said,
just
you
it sounds to me like
been addressed to him the late husband
directly attempting
get
whatever
of defendant.
upholding
the admission
opinion
Risjord gave
and advice Mr.
evidence,
of that
said,
note into
the court
client,
just
his
and that
you are
387
SEILER, Judge, dissenting.
subject
matter
with reference
court concluded from
The
communication.
instance,
view,
my
in
every
In almost
evidence,
finding
on the
of the
based
to disclose what advice
were a
asked
court,
note had not been com-
trial
that the
client,
judge
Missouri trial
gave
he
a
part
attorney-client
a
of an
municated as
objection
question,
would sustain the
Consequently,
it
not a
relationship.
was
practice
privilege.
based on
I believe law
privileged communication.
basis in
has been conducted on this
Missouri
recognize
that in some
the federal
years,
nothing
for
in State ex
and I see
rel.
ap
cases
Cannova the court has
cited
Company
American Insurance
Great
ex
of an
camera
proved the utilization
Smith,
1978)
(Mo.
563
62
banc
S.W.2d
attorney-client
the court
amination
will,
matter,
practical
change
as a
the situa-
much,
how
to determine
communications
tion.
un
any,
shall be made discoverable
thereof
But there are a few situations where a
approach.
Bird v. Penn
Wigmore
der
lawyer’s
privileged
advice is not
unless it
(E.D.Pa.
Central
the communication therefore, context, the evidence competent Bussen case and relevant and cannot the con- language admitted”, 3, token, must be by which the court’s but the same id. at sidered, from the al- was a communication stop consulting lawyers will not people why, which is lawyer, client to the leged attorney-client privilege is broad- 1895, 1939) (then RSMo under the statute § ened, either.1 attor- privileged had the it have been would scope attorney-client The broadened exist. relationship been found to ney-client by proposed opin- established privilege “the urging that Mrs. Del Commune part good ion will dismantle a face that it was ad- on its note indicates discovery. of Missouri Under 56.- professional Mr. Bovarie in his dressed 01(b)(1) discovery is limited to matters “not consequently it constitut- and that capacity, Risjord, privileged.” Suppose Mr. or one of at- communication between privileged ed a associates, had made the factual lawyer client”, The at 20. torney and S.W.2d investigation reported it to the client authority decision is Bussen having by instead of its been made General rela- attorney-client that if the proposition Adjustment Bureau or the Federal Bureau exists, by the any communication tionship Investigation. proposed opin- Under as con- privileged, the client is attorney to material, clearly dis- ion all this factual opinion in proposed tended now, up privi- would become coverable till authority is Bussen case present case. The proposed leged and not discoverable. if the relation- proposition that only for the opinion states that it does not mean that exist, then a communication ship does privileged factual information can be made privileged, but client to the by being recited to the client us at the what we have before that is not of the GAB inves- gives the illustration moment. tigation reports investiga- and the FBI heavily opinion also relies proposed report, tions and both of which were fur- in 24 Ohio review article St.L.J. on the law plaintiff through nished its ef- 1963, 1, Professors Sedler written But, above, investiga- these forts. as said court) which (now judge of this Simeone reports par- were made third tions and anything that states the view frankly they were discover- ties and the fact attorney- with the materially interferes not mean that factual able in this case does relationship to be restricted will be investigation made fosters its anything eliminated Lawyers now on. discoverable from strengthened to be retained and success is being presented legitimate way with a “preserve” concern that expresses up till now been disclosing avoid has constantly being entered lawyers is facts. discoverable view my opinion, professions. rule, 56.01(b)(3), product Rule the work protec- be broader than judges must apply the material help. will not For it ago this long Not “preserve”. tion of sub- “otherwise discoverable under must be an “insured-insurer” fit to create court saw (b)(1)” and under the latter division Barker, 540 rel. ex Cain privilege. State priv- must be “not material to discovered 1976). we are (Mo. banc Now S.W.2d work proposed Under the decision ileged.” attorney-client expand greatly about easily product can now be made making it harder for keep privilege. We discovery. I am and hence immune from got- We have facts to be ascertained. predict exactly what methods unable for well over along right in Missouri ten by resourceful law- procedures will be used with the years hundred one clients of avail themselves and their yers to present deci- was until the as it possible, discovery insulation now made it at this need to broaden There is no sion. 491.060, appeared statute, attorney- in RSMo Ch. since it first present § 1. The unchanged p. 1577. privilege, ever has remained *10 of the bar ingenuity I am sure that the but equal the occasion.
will be W., Relator, ex rel. D. STATE 4 of accord with Canon complete I am v. preserve the lawyer 4 that a should rule al., Respondents. et C. Duane HENSLEY A client. and secrets a confidence keep a affairs con- expects lawyer gossip to talk about B., and not Relator, fidence ex rel. E. STATE tongue a is an lawyer A with loose them. problem But abomination. fact the ethical law- us and the before al., Respondents. et C. Duane HENSLEY about client’s confi- does not talk yer Nos. 60834. prob- present does not answer the dences question discovery, here lem. Missouri, Court of Supreme asked to order being where the courts En Banc. may highly relevant production of what be evidence, privileged, not heretofore Dec. light. brought which cannot otherwise that communications conceivable might to the client advice from the communica- pieced together discern lawyer.
tions made case, communi- to client
such privileged under
cations would be statute, 491.060, which forbids
present any communi- by the
disclosure him client. The
cations made protects against indirect adequately
statute the client’s well as direct disclosure of us, need for and there is no
communications cover, so as to gratia, expand
ex blanche, passes everything
carte case, In the there is
to the client. instant any revelation of communi-
no cause fear client in three
cations “piecing a consideration
letters under read them Judge Smith has
together”,
correctly. dispute do not accu- Relators findings as to what
racy Judge Smith’s position is
the letters contain. Relator’s even the letters are so Judge appraisal rely
I would Smith’s his letter to as set forth in
of the situation (which up until is in full accord
counsel now subject) and law on the Missouri copies of the permit him to deliver
would plaintiff’s counsel.
three letters to respectfully
I dissent.