author: FINCH, Judge. DONNELLY, Judge, SEILER, Judge,

text:
    STATE ex rel. GREAT AMERICAN INSURANCE CO. et al., Relators, v. The Honorable Laurence R. SMITH, Judge of the Circuit Court of Jackson County, Missouri, Sixteenth Judicial Circuit, Division 12, Respondent.
    No. 60812.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      John C. Risjord, Ronald K. Barker, Kansas City, for relators.
    Gene A. DeLeve, Ronald S. Weiss, Kansas City, for respondent.
    Ernest H. Fremont, Jr., Wm. Dirk Van-dever, Russell W. Baker, Jr., Neil Ger-standt, Dennis D. Palmer, George Leonard, Kansas City, for amicus curiae.
   FINCH, Judge.

This original action in prohibition is the second such proceeding in this court for the purpose of resolving the issue of whether three letters concerning fire loss claims, written by an attorney to insurance companies he represents (relators), are protected from discovery by the attorney-client privilege. We make permanent our previously issued provisional rule in prohibition.

On December 24, 1973, a restaurant and nightclub owned by Cannova Enterprises, Inc. (Cannova) was destroyed by fire. Can-nova had in effect fire insurance policies written by relators which covered the contents, leasehold improvements and business interruption for Cannova’s business premises. After the fire Cannova and Mid-Continent National Bank of Kansas City, Missouri (Mid-Continent), the loss payee in the described policies, notified relators of the fire loss and damage and furnished proof of loss to each relator.

Relators employed the General Adjustment Bureau (GAB) to investigate the loss. Attorney John C. Risjord of the law firm of Niewald, Risjord and Waldeck was then contacted and employed to assist in investigating the origin of the loss and to represent relators in connection with the claims being asserted against them by Can-nova and Mid-Continent.

On May 31, 1974, relators rejected the proofs of loss by letter from Risjord to Gene DeLeve, attorney for Cannova and Mid-Continent. The claims were denied on the ground that the loss was of incendiary origin.

On August 9, 1974, Cannova and Mid-Continent filed suit against relators, alleging that their refusal to pay the amounts due under the fire insurance policies was vexatious and without reasonable cause. In Counts I and II they sought to recover the face amounts of the policies plus damages, attorney’s fees and interest. Relators’ answer, filed by attorney Risjord, raised the affirmative defenses of arson and false swearing.

In response to written interrogatories, submitted under Rule 56.01(b), each of the relators identified the person who made the decision on its behalf to deny the claims submitted by Cannova and Mid-Continent. Depositions of those individuals were scheduled and they were commanded by subpoenas duces tecum to produce all files, papers, documents, records and correspondence concerning the investigation of the fire and their action thereon. During the depositions, each witness was asked what he considered before denying the claim. Each testified that three letters written by attorney Risjord to relators were included in the material reviewed. These consisted of a letter dated February 12, 1974, an undated letter which Risjord testified was written during March or April, 1974, and a letter dated May 28, 1974. Production of all the material reviewed by the witnesses was then requested. All has since been furnished except the three letters from Risjord which, on advice of counsel, relators refused to furnish for the reason that they were communications protected by the attorney-client privilege.

Counsel for Cannova and Mid-Continent next moved for a court order directing the witnesses to produce the three letters from Risjord. A hearing was held, after which the court entered this order:

“Plaintiffs having made oral motion to require Raymond Schurkamp, George Freeseman and William L. Mathiesen and their respective insurance companies to produce certain described documents on the taking of their depositions, and the Court having given full consideration to same,
“IT IS HEREBY ORDERED that each of aforementioned witnesses produce at the taking of his deposition, subject to the condition hereinafter stated, all documents, described in his subpoenae, that are dated May 31,1974 and earlier, but is not required to produce those documents bearing a date subsequent to May 31, 1974.
“IT IS FURTHER ORDERED that, at the option of defendants’ counsel, any of aforementioned documents required to be produced, may first be presented to this Court for viewing by this Judge, who reserves the right to exclude from presentation at deposition any portions of said documents with respect to which interests of justice require exclusion.
“The Court believes that aforementioned documents, required to be produced, are reasonably calculated to lead to the discovery of admissible evidence as related to the issue of defendants’ vexatious refusal to pay and that plaintiffs have shown they have a substantial need of the materials in the preparation of their case and that they are unable without undue hardship to obtain the substantial equivalent of the materials by other means. Interests of justice require the documents to be produced notwithstanding claim of lawyer-client privilege except for any portions the Court deems should be excluded following inspection of the documents.”

Following this order relators sought prohibition. This court, in State ex rel. Great American Insurance Company v. Smith, 563 S.W.2d 62 (Mo. banc 1978), announced standards for determining whether communications are protected from discovery by the attorney-client privilege and held that the trial judge should examine the letters in camera to determine whether, under the standards announced, the letters should be produced for examination by Cannova and Mid-Continent. Those standards were based on 8 J. Wigmore, Evidence §§ 2320, 2322 (McNaughton rev. 1961) and § 491.-060.

Following that decision, respondent directed relators to deliver the three letters to him for in camera inspection. Pursuant to that order, the letters were produced at a hearing before respondent on May 22,1978. The transcript of that proceeding shows that Risjord stated that after the fire he was contacted by GAB and the relators and asked to represent relators; Risjord also said that the three letters in question were written in response to requests from rela-tors “to advise them concerning my opinion as to the investigation, where they stood on the law, and to keep them periodically advised and give them my opinion and advice on the subject of a claim which was being made * * Risjord’s explanation was not questioned at the hearing by counsel for respondent and nothing to the contrary was presented to the court.

On the day following that hearing, respondent made findings and conclusions with reference to the letters. These findings and conclusions were set out in a communication to counsel as follows:

“Gentlemen:
“On May 22, 1978, Mr. Risjord delivered to me (the Court) copies of the three letters in question (written by Mr. Risjord to the defendant insurance companies), pursuant to this Court’s order of May 15, 1978, for in camera inspection by me.
“I have read these letters and find that they basically contain:
1. Results of investigation made on behalf of Mr. Risjord and his firm.
2. Conclusions, opinions and impressions of Mr. Risjord and his firm concerning the results of the investigation and the handling of the case.
3. Recommendations of Mr. Risjord and his firm concerning action to be taken with reference to the case.
“I do not find in any of the letters any reference to any information given to Mr. Risjord or his firm by their clients, the defendant insurance companies, or any reference to communication made to the firm by the insurance companies. Nor do I find any indication of any advice given to the companies concerning any communication made by the companies to their attorneys.
“Using the majority opinion of the Supreme Court of Missouri en banc as a guide, I do not find in any of the three letters any matter to be protected by the attorney-client privilege, to-wit, nothing that ‘(1) “concerns any communication made to him by his client” in the attorney-client relation; or (2) contains “his advice thereon”; or (3) could lead to “the use of his statements as admissions of the client”; or (4) could lead “to inferences of the tenor of the client’s communications.” ’
“Accordingly, I plan to deliver to Mr. Weiss, attorney for the plaintiff, copies of the three letters in their entirety. However, since Mr. Risjord has indicated he might seek some extraordinary relief in the matter, I will hold up delivering the copies until June 12, 1978.
Respectfully,
Laurence R. Smith,
Judge, Div. 12”

Thereafter, relators again sought prohibition in this court. We issued our provisional rule in prohibition to which a return was filed. We then invited counsel to make suggestions in their briefs as to (1) what changes, if any, should be made in the rule announced in our prior decision reported at 563 S.W.2d 62, and (2) what procedure should be utilized at the appellate level to review in camera decisions of a trial court as to whether particular attorney-client communications are privileged. The court also granted the Missouri Bar’s request to file a brief amicus curiae in the case. After considering those briefs and the transcript in this case, as well as the briefs and transcript in the first prohibition proceeding, we have decided to overrule our prior decision, reported at 563 S.W.2d 62, and to hold that the three letters from Risjord to relators are privileged and not subject to discovery.

The attorney-client privilege dates from the reign of Elizabeth I of England. See 8 J. Wigmore, supra, § 2290. In recognition of that common law privilege, the legislature has enacted a statute, § 491.060, which provides, in part:

“The following persons shall be incompetent to testify:
******
(3) An attorney, concerning any .communication made to him by his client in that relation, or his advice thereon, without the consent of such client;”

The foregoing section has been held in a court of appeals opinion to be declaratory of the common law rule. Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13 (1947). We agree that it should be so construed. The statute does not limit or diminish the common law rule.

There are two prevailing views as to the scope of the attorney-client privilege, following an emphasis on two different fundamental policies. Dean Wigmore emphasized the fundamental societal need to have all evidence having rational probative value placed before the trier of facts in a lawsuit. While he argued against Jeremy Bentham’s suggestion that the attorney-client privilege be abolished, he regarded it as an exception to what he considered to be the more fundamental rule, and one which “ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.” 8 J. Wigmore, supra, § 2291 at 554.

A different fundamental policy is emphasized by Sedler & Simeone in “Privileges in the Law of Evidence: The Realities of Attorney-Client Confidences,” 24 Ohio St.L.J. 1 (1963). While the authors acknowledge Wigmore’s view of attorney-client privilege as an exception to the policy of disclosure of all evidence, they view confidentiality of communications between attorney and client as the more fundamental policy, to which disclosure is the exception. This view is based in part on the duty of a lawyer to preserve a client’s confidences, subject to a very limited privilege of disclosure, which is imposed by the Canons of Professional Ethics. The greater societal need for confidentiality is attributed to the relationship of lawyer to client in giving advice — a relationship in which secrecy has always been considered important. In support of a broad attorney-client privilege, the article states at p. 3:

“As long as our society recognizes that advice as to matters relating to the law should be given by persons trained in the law — that is, by lawyers — anything that materially interferes with that relationship must be restricted or eliminated, and anything that fosters the success of that relationship must be retained and strengthened. The relationship and the continued existence of the giving of legal advice by persons accurately and effectively trained in the law is of greater societal value, it is submitted, than the admissibility of a given piece of evidence in a particular lawsuit. Contrary to the implied assertions of the evidence authorities, the heavens will not fall if all relevant and competent evidence cannot be admitted.”

(Footnotes omitted.) See also Louisell, “Confidentiality, Conformity and Confusion: Privileges in Federal Court Today,” 31 Tul.L.Rev. 101 (1956).

We find this analysis of the fundamental policy underlying attorney-client privilege to be preferable to that of Wig-more. There clearly is a societal need for persons to be able to employ and consult with persons trained in the law for advice and guidance as to legal matters. As recognized by Sedler & Simeone, confidentiality of the communications between client and attorney is essential for such relationships to be fostered and to be effective. It was so considered at common law as shown by the following from the case of Annesley v. Earl of Anglesea, 17 How.St.Tr. 1139 (Ex. 1743), in which the Honourable Mr. Baron Mounteney said at 1241:

“[A]n increase of legal business, and the inability of parties to transact that business themselves, made it necessary for them to employ . other persons who might transact that business for them. That this necessity introduced with it the necessity of what the law hath very justly established, an inviolable secrecy to be observed by attornies, in order to render it safe for clients to communicate to their attornies, all proper instruction for the carrying on those causes which they found themselves under a necessity of intrusting to their care.”

The nature and complexity of our present system of justice and the relationships among people and between the people and their government make the preservation and protection of the attorney-client privilege even more essential. If this is to be accomplished, when one undertakes to confer in confidence with an attorney whom he employs in connection with the particular matter at hand, it is vital that all of what the client says to the lawyer and what the lawyer says to the client to be treated as confidential and protected by the attorney-client privilege. This is what a client expects. A rule of attorney-client privilege broad enough in scope to achieve this goal was adopted by the influential American Law Institute. ALI Model Code of Evidence, Rule 209(d) (1942) provides:

“As used in Rules 210 to 213,
******
(d) ‘confidential communication between client and lawyer’ means information transmitted by a voluntary act of disclosure between a client and his lawyer in confidence and by a means which, so far as the client is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was transmitted.
******
Comment on Clause (d):
A communication means information transmitted voluntarily by any means; to be confidential it must be transmitted in confidence and in such a way that it will not, to the knowledge of the client, be disclosed to third persons to whom disclosure is not reasonably necessary to make the communication effective or to accomplish its purpose. Communication between client and lawyer includes not only a communication from client to lawyer but also a communication from lawyer to client.” (Emphasis supplied.)

The Wigmore approach, adopted in our decision reported at 563 S.W.2d 62, is narrower than that of the ALI Model Code of Evidence. It would protect the confidentiality of all of what the client says to the lawyer but would not protect all of what the lawyer says to the client. Of the lawyer’s statements to his client, it would protect only (1) advice by the attorney concerning a communication to him by his client, (2) anything the lawyer said which could be an admission of his client, or (3) anything said by the lawyer that would lead to inferences concerning the tenor of what the client had said to him.

We are of the opinion that the Wigmore approach does not provide enough protection for the confidentiality of attorney-client communications to accomplish the objective for which the privilege was created and now exists. Under the Wigmore approach, not all of a lawyer’s advice is confidential, and statements by the lawyer which are not in the nature of advice are totally unprotected, except to the extent that they disclose what the client has said. This is demonstrated by the trial judge’s analysis of the Risjord letters wherein he advised that he would deliver copies of the Risjord letters to counsel for Cannova. He stated that he did not find in the letters any reference to information given to the attorney by the insurance companies and the Risjord letters did not mention any communication he had received from the companies. The letter then said, “Nor do I find any indication of any advice given to the companies concerning any communication made by the companies to their attorneys.” In other words, anything said by the attorney to his clients about the matter he was handling for them would not be treated as confidential unless it was advice on information actually conveyed by the clients to the attorney or what was said would disclose what the clients had told the attorney. All other consultation, opinion and advice is not protected under the Wigmore view.

When a client goes to an attorney and asks him to represent him on a claim which he believes he has against someone or which is being asserted against him, even if he as yet has no knowledge or information about the claim, subsequent communications by the attorney to the client should be privileged. Some of the advice given by the attorney may be based on information obtained from sources other than the client. Some of what the attorney says will not actually be advice as to a course of conduct to be fallowed. Part may be analysis of what i; known to date of the situation. Part may be a discussion of additional avenues to be pursued. Part may be keeping the client advised of things done or opinions formed to date. All of these communications, not just the advice, are essential elements of attorney-client consultation. AH should be protected.

This does not mean that discoverable factual information can be made privileged by being recited by the attorney or the client in their confidential communications. Only the actual attorney-client communications are privileged. For example, in this case the relators had an investigation of the fire made by GAB which made various reports to relators. In addition, the FBI conducted surveillance of persons preceding the fire at Cannova’s restaurant on December 24, 1973, made further investigation after the fire, and submitted a written report covering that surveillance and investigation to Dr. McNamara, then Kansas City Chief of Police, on January 18, 1974. A copy of that report was obtained by Risjord. It and the GAB reports were furnished to Cannova pursuant to its discovery efforts. If these had been attached to or discussed in the letters from Risjord to relators, the fact that the attorney’s letters would be privileged would not cause the GAB reports or the FBI letter to become protected by the attorney-client privilege. They still would be discoverable under Rule 56.01(b).

The scope of discovery under existing rules and decisions is sufficiently comprehensive to afford parties to litigation ample means of securing factual and other data needed for preparation and trial of a case. In this case it has enabled Cannova to obtain the GAB investigative reports, photographs, expert reports, investigatory reports by arson specialists, names of witnesses, and other items including the FBI report to the Chief of Police of Kansas City. Cannova also has taken the deposition of the FBI agent as well as representatives of relators. The only things sought but not obtained by Cannova are the three Risjord letters to relators. Those are not sought to provide Cannova with information as to how the fire occurred or with names of potential witnesses with knowledge as to how the fire occurred. Cannova wants these letters to learn what Risjord said to his clients about the claims he had been employed to handle on their behalf. This information is requested for use against relators on Cannova’s claim for vexatious delay. Both Cannova’s brief and an inter-change between the court and counsel for Cannova during oral argument of this case •show that this is true:

“Member of Court: From what you’ve just said, it sounds to me like you are directly attempting to get whatever opinion and advice Mr. Risjord gave to his client, and that you are not just trying to get the results of an investigation. Am I correct?
Counsel: That is correct as long as his advice in the way it’s expressed does not carry with it a disclosure of information that the client gave to the lawyer.
Member of Court: So that if he had said in the letter or orally told the client, having considered all of the information that I have at hand in this matter I believe that the fire was of incendiary origin and that the insured did it and I believe that he’s not worthy of belief and I therefor believe you ought not to pay the client.
Counsel: Yes, I think we’re entitled to that opinion * * *.”

Cannova is not entitled to Risjord’s opinion and advice. It is not entitled to examine these three letters.

In this case, it is clear that Risjord was employed to represent relators in the handling and defense of the claims of Can-nova and Mid-Continent arising out of the December 24, 1973 fire. There is no question but that the three letters Risjord wrote to relators pertained to these matters in which he had been employed. Risjord so stated and the court’s findings as set out in the letter of April 21,1977, so show. If this were not so, we would direct the court to conduct a hearing and examine representatives of relators or Risjord or both to determine whether at the time the letters were written, the relation of attorney and client regarding the insurance claims existed, and whether the letters pertained to the matters for which Risjord had been employed. If either answer were in the negative, the privilege would not apply.

This procedure would be in harmony with Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13 (1947), in which the court discussed the propriety of the trial court’s action in admitting into evidence a lawyer’s testimony concerning a note which had been addressed to him by the late husband of defendant. In upholding the admission of that note into evidence, the court said, 199 S.W.2d at 20-21:

“Our statute, which is declaratory of the common-law rule, provides that an attorney shall be incompetent to testify concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client.
“It is thus to be observed that for the rule of privilege to apply, the relation of attorney and client must have actually existed between the parties at the time the communication was made or the advice given. Moreover, such relation must have existed as to the subject matter of the communication or advice; and the communication, if' it is to be privileged, must have been made to the attorney in his professional capacity, and on account of the relation of attorney and client. If such relation existed, the privilege is not confined to communications or advice in connection with pending or anticipated litigation, but it extends to all matters where the attorney was consulted by his client for professional advice or service in the course of the employment.
“The question of whether the note was a privileged communication was one of law for the court; and to enable it to rule upon the question, the court proceeded to examine Mr. Boverie in regard to his relations with Del Commune, and the circumstances under which the note had come into his possession.” (Footnotes omitted.)

It should be noted that the inquiry was not directed to whether part or all of the note might be admissible in spite of the attorney-client privilege by reason of the nature of its content. Instead, the determinative issue was whether the relationship of attorney and client existed between the parties at the time of the communication with reference to the subject matter of the communication. The court concluded from the evidence, based on the finding of the trial court, that the note had not been communicated as a part of an attorney-client relationship. Consequently, it was not a privileged communication.

We recognize that in some of the federal cases cited by Cannova the court has approved the utilization of an in camera examination by the court of attorney-client communications to determine how much, if any, thereof shall be made discoverable under the Wigmore approach. Bird v. Penn Central Company, 61 F.R.D. 43 (E.D.Pa.1973), is such a case. However, no state court decision approving or adopting that procedure has been cited, and we have found none. We have concluded that we should not adopt such a rule in this case. The harm to the traditional attorney-client relationship which could result from permitting a trial judge to interrogate a lawyer or his client to learn what the attorney said in their conferences, or to examine the lawyer’s letters to ascertain what he said to the client therein, in order to determine what portions thereof could be made available to the other parties under the Wigmore test could, and we believe would, be considerable. It should not be permitted.

We make permanent our provisional rule in prohibition.

MORGAN, C. J., and BARDGETT, RENDLEN and SIMEONE, JJ., concur.

DONNELLY, J., dissents in separate dissenting opinion filed.

SEILER, J., dissents in separate dissenting opinion filed.

DONNELLY, Judge,

dissenting.

In my view, the primary concern of the judicial process is that we seek the truth and then do justice. Deviations from this goal should not constitute “the more fundamental policy.” The principal opinion makes paramount the protection from disclosure of what an attorney says to his client. I cannot agree.

I respectfully dissent.

SEILER, Judge,

dissenting.

In almost every instance, in my view, were a lawyer asked to disclose what advice he gave his client, a Missouri trial judge would sustain the objection to the question, based on privilege. I believe law practice has been conducted on this basis in Missouri for years, and I see nothing in State ex rel. Great American Insurance Company v. Smith, 563 S.W.2d 62 (Mo. banc 1978) which will, as a practical matter, change the situation.

But there are a few situations where a lawyer’s advice is not privileged unless it fits the limitations of the statute, § 491.060, exactly. One such situation is where the insured is suing on the policy, as here, and is claiming damages for vexatious refusal to pay. Suppose, for example, that Mr. Ris-jord’s three letters advised relator not to pay the claim because he mistakenly believed the proof of loss was filed a day late and the insurer acted accordingly. Why shouldn’t the insured be able to discover this fact and use it against the insurer? What is there about permitting discovery of this fact which would in any way hinder prospective clients from consulting lawyers and making a complete disclosure of the facts to counsel?

The proposed opinion, however, makes everything that takes place from lawyer to client privileged. All communications, not just advice, are to be protected and privileged.

The proposed opinion cites Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13 (1947) as supporting the proposition that the determinative issue with respect to whether or not a communication is privileged is whether the relationship of attorney and client existed between the parties at the time of the communication with reference to its subject matter. Since the relationship did not exist in the Bussen case, it was not a privileged communication; ergo, since it does exist in the present case (Risjord concededly was attorney for rela-tors), the communication is privileged.

This view ignores the important fact that the communication under examination in the Bussen case and the context, therefore, in which the court’s language must be considered, was a communication from the alleged client to the lawyer, which is why, under the statute (then § 1895, RSMo 1939) it would have been privileged had the attorney-client relationship been found to exist. Mrs. Del Commune was urging that “the note indicates on its face that it was addressed to Mr. Bovarie in his professional capacity, and that it consequently constituted a privileged communication between attorney and client”, 199 S.W.2d at 20. The Bussen decision is not authority for the proposition that if the attorney-client relationship exists, any communication by the attorney to the client is privileged, as contended by the proposed opinion in the present case. The Bussen case is authority only for the proposition that if the relationship does exist, then a communication by the client to the lawyer is privileged, but that is not what we have before us at the moment.

The proposed opinion also relies heavily on the law review article in 24 Ohio St.L.J. 1, written in 1963, by Professors Sedler and Simeone (now a judge of this court) which frankly states the view that anything that materially interferes with the attorney-client relationship is to be restricted or eliminated and anything that fosters its success is to be retained and strengthened and expresses concern that the “preserve” of lawyers is constantly being entered by other professions. In my opinion, our view as judges must be broader than the protection of a “preserve”. Not long ago this court saw fit to create an “insured-insurer” privilege. State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976). Now we are about to expand greatly the attorney-client privilege. We keep making it harder for the facts to be ascertained. We have gotten along all right in Missouri for well over one hundred years with the attorney-client privilege as it was until the present decision. There is no need to broaden it at this late date. It may be, as the above article states, that “the heavens will not fall if all relevant and competent evidence cannot be admitted”, id. at 3, but by the same token, people will not stop consulting lawyers if the attorney-client privilege is not broadened, either.

The broadened scope of attorney-client privilege established by the proposed opinion will dismantle a good part of the scope of Missouri discovery. Under rule 56.-01(b)(1) discovery is limited to matters “not privileged.” Suppose Mr. Risjord, or one of his lawyer associates, had made the factual investigation and reported it to the client instead of its having been made by General Adjustment Bureau or the Federal Bureau of Investigation. Under the proposed opinion all this factual material, clearly discoverable up till now, would become privileged and not discoverable. The proposed opinion states that it does not mean that factual information can be made privileged by being recited by the lawyer to the client and gives the illustration of the GAB investigation and reports and the FBI investigations and report, both of which were furnished plaintiff through its discovery efforts. But, as said above, these investigations and reports were made by third parties and the fact that they were discoverable in this case does not mean that factual investigation made by the lawyer will be discoverable from now on. Lawyers are being presented with a legitimate way to avoid disclosing what has up till now been discoverable facts.

Rule 56.01(b)(3), the work product rule, will not help. For it to apply the material must be “otherwise discoverable under subdivision (b)(1)” and under the latter the material to be discovered must be “not privileged.” Under the proposed decision work product can now easily be made privileged and hence immune from discovery. I am unable to predict exactly what methods and procedures will be used by resourceful lawyers to avail themselves and their clients of the discovery insulation now made possible, but I am sure that the ingenuity of the bar will be equal to the occasion.

I am in complete accord with Canon 4 of rule 4 that a lawyer should preserve the confidence and secrets of a client. A client expects a lawyer to keep his affairs in confidence and not to talk or gossip about them. A lawyer with a loose tongue is an abomination. But that is not the problem before us and the fact that the ethical lawyer does not talk about his client’s confidences does not answer the present problem. We have here a question of discovery, where the courts are being asked to order production of what may be highly relevant evidence, not heretofore privileged, and which cannot otherwise be brought to light.

It is conceivable that communications or advice from the lawyer to the client might be pieced together to discern communications made by the client to the lawyer. In such a case, the lawyer to client communications would be privileged under the present statute, § 491.060, which forbids disclosure by the attorney of any communications made to him by the client. The statute adequately protects against indirect as well as direct disclosure of the client’s communications and there is no need for us, ex gratia, to expand the rule so as to cover, carte blanche, everything the lawyer passes to the client. In the instant case, there is no cause to fear revelation of any communications by the client in the three Risjord letters under consideration by a “piecing together”, if Judge Smith has read them correctly. Relators do not dispute the accuracy of Judge Smith’s findings as to what the letters contain. Relator’s position is that even so the letters are privileged.

I would rely on Judge Smith’s appraisal of the situation as set forth in his letter to counsel (which up until now is in full accord with the Missouri law on the subject) and would permit him to deliver copies of the three letters to plaintiff’s counsel.

I respectfully dissent.

      . There was a third count by Cannova against relators and the law firm of Niewald, Risjord and Waldeck wherein recovery was sought on the basis that statements in the May 31, 1974, letter denying the claim because the loss was of incendiary origin were libelous. The trial court sustained a motion for summary judgment as to this claim.

      . All references to rules are to V.A.M.R.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . Rule 210 actually establishes the attorney-client privilege, Rules 211 and 212 provide for exceptions in certain instances, Rule 213 provides for termination and Rule 231 covers waiver. Rules 211, 212, 213 and 231 are not involved in the issue presented by this case.

      . Smith, “Avoiding Lawyer Malpractice Through Communication Skill” (pts. 1-2), 34 J.Mo.B. 148, 246 (1978).

      . Judge Seiler’s dissent speaks of efforts to protect the “preserve” of lawyers and suggests at least inferentially that this is the purpose of protecting all of what the lawyer says to the client as well as what the client says to the lawyer. That is not the objective of the privilege or of this opinion. Instead, as the opinion states, it is to make it possible for people to employ and confer with one trained in the law and to do so in confidence. The privilege is for the benefit of the client, not the lawyer.
      The dissent also states that this opinion will greatly expand the attorney-client privilege as it has existed in Missouri for one hundred years. No authority is cited to support that contention and none exists. As a matter of fact, this opinion does not broaden the scope of the attorney-client privilege as it has existed and been applied in Missouri.

      . This case does not involve materials claimed by relators to be exempt from discovery as work product under Rule 56.01(b)(3). Hence, we do not deal with the work product question.

      .Judge Seiler’s dissent argues that “[t]he broadened scope of attorney-client privilege established by the proposed opinion will dismantle a good part of the scope of Missouri discovery” and that factual material obtained by the attorney and reported to his client “would become privileged and not discoverable.” It concludes that “[ljawyers are being presented with a legitimate way to avoid disclosing what has up till now been discoverable facts.” Such contention shows a misreading of this opinion. The privilege is limited to protecting attorney-client communications. For example, the copy of a letter from the FBI to the chief of police, which copy was obtained by Risjord, was not protected by the privilege and was discoverable. If Risjord had obtained names of witnesses or taken statements which were furnished to the client, the names and the statements themselves would not be protected by the attorney-client privilege nor insulated by this opinion.

      . The present statute, § 491.060, on attorney-client privilege, has remained unchanged ever since it first appeared in RSMo 1855, Ch. 168, § 6, p. 1577.


source: Caselaw Access Project

author: FINCH, Judge. SEILER, Judge,

license: Public Domain

text:
    STATE ex rel. D. W., Relator, v. C. Duane HENSLEY et al., Respondents. STATE ex rel. E. B., Relator, v. C. Duane HENSLEY et al., Respondents.
    Nos. 60823, 60834.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      Joseph A. Simanek, Legal Aid of Western Missouri, Kansas City, for relator.
    John D. Ashcroft, Atty. Gen., Reginald Turnbull, Asst. Atty. Gen., Jefferson City, for respondents.
   FINCH, Judge.

Separate petitions for a writ of habeas corpus and for declaratory judgment were filed in this court by D.W. and E.B. These petitions, filed pursuant to § 202.850, requested release from custody under previous commitments to the Department of Mental Health pursuant to which they had been placed at St. Joseph State Hospital No. 2. We ordered the two cases consolidated.

Except for dates and names, the petitions are identical. They allege that on January 10,1977, as to E.B. and on April 25,1977, as to D.W., an application for an order of involuntary hospitalization of a person who is mentally ill was filed in the Probate Court of Jackson County. In each instance, a notice of hearing on the application was personally served on the person whom the petition sought to have hospitalized and an attorney was appointed to represent each subject. Thereafter, hearings were held after which an order of hospitalization was entered pursuant to § 202.807. The orders recite that the patient appeared in person and by attorney and that after a hearing at which one of the witnesses was a licensed physician, the court found that the subject of the hearing was mentally ill, as defined by law, and was in need of custody, care and treatment in a hospital for the mentally ill. It further found that the person had not voluntarily sought such hospitalization and that due to such illness the person lacked sufficient insight and capacity to make responsible decisions with respect to such hospitalization.

The petitioners did not avail themselves of the right of appeal to the circuit court pursuant to § 202.807.7 nor did they subsequently institute a proceeding in the Probate Court of Jackson County for reexamination of the orders of hospitalization as authorized by § 202.837.

In these proceedings petitioners seek release from custody plus associated relief on the basis that § 202.807, under which they were committed, is unconstitutional under various provisions of the Missouri and United States Constitutions. The reasons assigned are that the statute is vague and overly broad, its notice requirements are deficient, it neither permits nor requires use of the rules of evidence, it requires proof by only a preponderance of the evidence, it does not require that incarceration be in the least restrictive setting appropriate and it does not require mandatory periodic review hearings.

On July 14, 1978, we ordered writs of habeas corpus to issue. Respondents filed returns thereto which assert that their custody of petitioners is pursuant to valid orders of the Probate Court of Jackson County, that § 202.807 is constitutional on its face and as applied and that habeas corpus relief is inappropriate for the reason that petitioners have available a remedy pursuant to § 202.837. Thereafter, no evidentia-ry hearing was requested by either party and the case was set for oral argument.

The briefs filed herein disclose that on July 31, 1978, E.B. was placed on out-patient care and subsequently on August 18, 1978, was released from the care and custody of the Department of Mental Health. On August 11, 1978, D.W. was released from the care and custody of the Department of Mental Health. Both releases were pursuant to § 202.827.

Relators, by their petitions for writ of habeas corpus, sought to challenge their custody by respondents and to effect their release. That custody has been terminated by their release pursuant to § 202.827. As a result, the petitions have become moot. At issue is whether we should dismiss them for that reason or whether we should in our discretion retain and decide them as we may do with cases which present issues of great importance which may arise again. Boone v. Danforth, 463 S.W.2d 825 (Mo.banc 1971); O.H. v. French, 504 S.W.2d 269 (Mo.App.1973).

Petitioners argue in their reply brief that we should retain and decide these cases because they might subsequently be recommitted pursuant to § 202.807. However, the recent session of the General Assembly enacted a new Missouri civil commitment law, H.C.S.S.B. 651, effective January 2, 1979, which repeals § 202.807. Consequently, commitments on and after that date will be pursuant to the provisions of the new statute which differs in numerous respects from the present statute. Therefore, neither petitioners nor others will be subject to commitment under § 202.807.

Petitioners next argue that we should retain and decide these cases because otherwise they will suffer adverse consequences from the orders of commitment even though they now have been released from custody. They suggest that any attempt to commit them under the new law will be influenced by the prior commitments of which they now complain and that records of the prior commitments will be used in any subsequent proceeding for civil commitment. We are not persuaded that this will be so. They cite In re Ballay, 157 U.S.App. D.C. 59,482 F.2d 648 (1973), but no Missouri cases supporting the proposition asserted are cited. Relators also claim that future employment in various fields will be affected adversely. The only allegation in the petitions for habeas corpus which might be said to relate to this contention is the allegation that petitioners, as a result of the adjudication and confinement, suffer the stigmatization of being adjudicated and labeled as mentally ill. As previously noted, petitioners did not request an evidentiary hearing and no evidence has been received. Therefore, there is no record to support petitioners’ contentions. They have attached to their reply brief an appendix which purports to consist of copies of documents said to show that future employment in certain areas will be affected adversely. Such copies are not evidence in this case and we do not consider them. If petitioners wanted these documents considered, a hearing should have been requested and evidence offered.

Under these circumstances we have concluded not to retain and decide these cases. The petitions for writ of habeas corpus are dismissed as moot and the writs heretofore issued are quashed.

MORGAN, C. J., BARDGETT, REND-LEN and SIMEONE, JJ„ and ALDEN A. STOCKARD, Special Judge, concur.

SEILER, J., dissents in separate dissenting opinion filed.

DONNELLY, J., not sitting.

SEILER, Judge,

dissenting.

The majority concludes that this case is moot because the petitioners have been released and no collateral consequences of commitment have been demonstrated. I respectfully disagree for two reasons. First, if such a hearing were required, the proper course would be to remand for a hearing rather than to dismiss. Second, a number of collateral consequences of commitment do exist which can be recognized by this court without resort to an evidentia-ry hearing.

At the time these petitions were filed and our writ issued, both petitioners were in the custody of the Department of Mental Health. They requested release from custody, the expungement of the records of their commitment and an award of attorney’s fees. As such, an evidentiary hearing on the collateral consequences of confinement was neither necessary nor appropriate. The return was filed July 20, 1978, admitting custody and asserting the constitutionality of the commitment statutes. On July 27, 1978, the cases were consolidated and set for hearing and argument on September 26, 1978. It was not until August 11 and 18 that the petitioners were released. We should not treat petitioners’ failure to ask for an evidentiary hearing at that late juncture (which would have caused the September 26 setting to be stricken and would have delayed the hearing in this court for an indefinite time) as though petitioners were thereby conceding there is no support for their contention of stigmatization or are somehow estopped to assert to the contrary. If, in order to grant relief, the court finds that evidence of the collateral consequences of commitment must be adduced, it should give petitioners a new opportunity to request an evidentiary hearing, and remand the case to a master. If such consequences can be shown, this court should then decide the case.

I do not believe, however, that a hearing is necessary in order for this court to recognize that there are many collateral consequences to an involuntary commitment. I believe this court may take judicial notice of the social stigma which attaches. Cf. Martin v. Star Cooler Corp., 484 S.W.2d 32, 35 (Mo.App.1972); Feinberg v. Pfeiffer Co., 322 S.W.2d 163, 169 (Mo.App.1959). In Lessard v. Schmidt, 349 F.Supp. 1078, 1088-89 (E.D.Wis.1972) the district court discussed the statutory and social consequences of hospitalization without any reference to proof thereof having been made. So too, in In re Curry, 152 U.S.App.D.C. 220, 470 F.2d 368, 371 n. 5 (1972) and Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017, 1018-20 (1971) the District of Columbia circuit recognized that the constitutionality of commitment procedures was not moot despite the patient’s release from custody where collateral consequences might follow. It gave no indication that an evidentiary hearing was held on these consequences.

As stated by the Ohio Supreme Court, “there are the obvious difficulties which the individual will face in attempting to readjust to life outside the institution. The social stigma accompanying commitment in a mental institution will present obstacles to former patients in seeking employment and entering into commercial transactions.” In re Fisher, 39 Ohio St.2d 71, 313 N.E.2d 851, 857 (1974). The Ohio court relied on Fisher and on Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) in McDuffee v. Berzzarins, 43 Ohio St.2d 23, 330 N.E.2d 667, 669 (1975) to state:

“Our determination to reach the merits in this case results in part from our concern with the continuing collateral consequences subsequent to release from commitment for mental illness, [citations omitted]. Also, a decision on the merits in this case will not be a futile exercise since it may affect serious continuing disabilities which are the result of a finding of mental illness, and commitment.”

An example of one of these consequences, the effect on the former patient’s ability to engage in future activities, can be found in the very forms which this court requires law students to fill out in order to register as a law student. Question No. 25 requires the applicant report whether he or she has been “committed, confined or treated in any institution for mental illness.”

Additionally, if the petitioners wish to live in the District of Columbia or other jurisdictions which have statutory restrictions on a mental patient’s right to exercise certain rights, the fact of prior commitment will affect the former patient adversely. See In re Ballay, 482 F.2d at 651-58.

It is apparent that in addition to the social stigma noted above, a number of other consequences of commitment remain. The majority rejected petitioners’ argument, supported by In re Ballay, 482 F.2d at 651-652, that prior commitments will influence later commitments, by stating that no Missouri cases so holding had been cited. However, we need look no further than our own statutes for proof. A provision of the present commitment statute, § 202.807(3), RSMo 1969, states in relevant part, that in the case of an application to the court for the involuntary commitment of a person:

“. . If an order of hospitalization is made, the medical witness shall make out a detailed history of the case, as far as practicable, stating the diagnosis or nature of the mental condition, its duration, former treatment of the patient, and all other particulars relating to the patient and his mental condition on forms acceptable to the division of mental health. This history shall be attached to the order of hospitalization to be delivered to the facility. The court in its discretion may order further examination as to the mental condition of the proposed patient and may continue the hearing until the report of such further examination is made to the court.” (emphasis added).

A provision of the new commitment procedures, as set out in § 202.195 of H.C.S. S.B. 651 (1978), provides:

“1. The fact of admission and all information and records compiled, obtained, prepared or maintained by the mental health coordinator, mental health or retardation facility, or otherwise in the course of providing services to either voluntary or involuntary patients at public or private mental health or retardation facilities shall be confidential. Information and records may be disclosed only:
“(1) As authorized by the patient, his guardian, or if the person is a minor by his parent or other person legally entitled to his custody;
“(2) To persons or agencies responsible for providing health care services to such patients;
“(5) To the courts as necessary to the administration of this act;
“(6) To law enforcement officers or public health officers only to the extent necessary to carry out the responsibilities of their office; . . .
“(8) Pursuant to an order of a court or administrative agency of competent jurisdiction;
“3. Nothing contained in this act shall limit the rights of discovery in judicial or administrative procedures as otherwise provided for by statute or rule.” (emphasis added).

Clearly, then, under either the old or the new law, prior commitment can be a relevant factor in either the decision to commit or the determination of treatment. It will always hang over the former patient, despite his release from custody, unless the record of commitment is expunged.

In light of the numerous consequences of commitment discussed above, no evidentia-ry hearing is required in order to conclude that the probability that collateral consequences of the petitioners’ commitment will result is great. The questions raised are important ones of due process and equal protection which may arise again yet evade review because the petitioners have been released. As such the petitions should not be dismissed as moot. Boone v. Danforth, 463 S.W.2d 825, 827 (Mo.banc 1971). I dissent.

      . In their brief petitioners withdraw their request for a declaratory judgment.

      . RSMo Cum.Supp.1975.

      . All references to § 202.807 are to RSMo Cum. Supp.1975.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . 1978 Mo.Legis.Serv. 83 (Vernon) (codified as §§ 202.010-.225 RSMo).

      . The new statute further provides in § 202.220 that “[t]he commitment of any person pursuant to section 202.807 RSMo Cum.Supp.1975, shall terminate not more than one year after January 2, 1979, unless further detention and treatment is authorized pursuant to section 202.145 or pursuant to the provisions of chapter 475, RSMo.” Section 202.173 thereof also authorizes any person detained pursuant to the act to apply for a writ of habeas corpus.

      . The mere fact of petitioners’ release from custody does not deprive us of jurisdiction in light of the fact that petitioners were in custody when the petitions were filed. Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017, 1020-21 (1971); Cf. Carafas v. LaVallee, 391 U.S. 234, 238-40, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

      . Vacated, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), clarified, 379 F.Supp. 1376 (E.D.Wis.1974), vacated, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), reinstated, 413 F.Supp. 1318 (E.D.Wis.1976).


author: RENDLEN, Judge.

text:
    GENERAL MOTORS CORPORATION, Respondent, v. FAIR EMPLOYMENT PRACTICES DIVISION OF the COUNCIL ON HUMAN RELATIONS of the CITY OF ST. LOUIS et al., Appellants.
    No. 60141.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      Jack L. Koehr, Charles W. Kundered, Judith A. Ronzio, St. Louis, for appellants.
    James E. McDaniel, James C. Brandenburg, St. Louis, Otis M. Smith, General Motors Corp., Detroit, for respondent.
   RENDLEN, Judge.

The Fair Employment Practices Division of the Council on Human Relations of the City of St. Louis (Division) and its individual members appeal from a judgment of the circuit court of St. Louis City reversing the Division’s order finding General Motors Corporation (General Motors) guilty of discriminatory employment practices under St. Louis City Ordinance 51512.

Forrest Syms, a probationary employee of General Motors, filed a complaint with the Division, charging racial discrimination in General Motors’ termination of his employment. Complainant had previously worked at the respondent’s Chevrolet Shell Plant from 1967 until 1969. On December 18, 1970, he had been hired at respondent’s St. Louis Fisher Body Plant as a probationary employee. He claims that during the first day on the job he became dizzy and fell. Complainant went to the plant nurse where his request to see a doctor was refused by the nurse who told him to return to work. He did so, but later returned claiming that the nature of the work caused him to become dizzy. The nurse again denied his request to see a doctor, ordering him to return to the assembly line; instead, claimant went to the Labor Relations Office repeating his assertion of dizziness and again requesting to see a doctor. Once again his request was denied and he was told to return to work. The Division found that his performance on the job was thereafter

monitored by management, who found it defective, and at the same time complainant’s prior work record at the Chevrolet Shell Plant was reviewed. Within about five hours of complainant’s commencement of work for respondent on December 18, 1970, respondent terminated him as a probationary employee on the grounds that his work record and performance indicated unsuitability. We expressly find that the nurse’s conclusion that complainant was feigning dizziness was a significant factor entering into this management decision.

General Motors’ review of Syms’ prior work record revealed several disciplinary suspensions for violation of company rules and frequent leaves of absence for such stated reasons as “exhaustion.” The observation of Syms’ work on the day in question disclosed that approximately fifty percent of the work performed was improperly done causing problems down the assembly line. Syms was informed that his termination was based upon three factors, (1) he had been assigned an easy job, given more than ample break-in time, but continued to perform in an improper manner, (2) the medical department could find no substantiation for his claim of dizziness, and (3) if, indeed, he were dizzy, a moving assembly line was no place for him to be working.

The Division, by its two to one decision, determined General Motors had unlawfully discriminated against complainant and ordered his reinstatement with back pay from the date of termination. From that order, General Motors petitioned for judicial review. The circuit court in the proceedings there, sustained General Motors’ motion for summary judgment and found the Division’s order “is invalid, illegal, not authorized by law, and is unsupported by competent and substantial evidence, is arbitrary and capricious, and the same is hereby reversed.” This appeal followed.

We first consider respondent’s contention that “appellants have no proper jurisdictional basis to be before this court.” Respondent argues that (1) the questions of constitutional construction and validity of the ordinance were not raised at the earliest opportunity and (2) the trial court made no ruling with respect to such issues, concluding that the cause is not within the ambit of this Court’s jurisdiction under Mo.Const. art. V, § 3. Respondent cites Kelch v. Kelch, 450 S.W.2d 202 (Mo.1970), transferred 462 S.W.2d 161 (Mo.App.1970), and also Kansas City v. Graybar Electric Co., 454 S.W.2d 23 (Mo.1970), wherein it is stated:

[I]n order for this court to have appellate jurisdiction based upon the existence of a constitutional question, it must appear that the trial court considered and passed on the same. . . . “It is only when a constitutional question has been properly raised, and passed upon by the trial court, and ruled adversely to the party appealing, that this court acquires jurisdiction upon account of such constitutional question being involved.” 454 S.W.2d at 25 (citations omitted).

The contention that appellants failed to raise their constitutional arguments before the trial court is without merit. From the record it appears the Division sustained the original complaint and in so doing must necessarily have considered the ordinance valid. Only when General Motors made its challenge to the ordinance’s validity in the circuit court proceeding was it incumbent upon appellants to assert the constitutionality of the ordinance and the city’s authority to enact the same under art. VI, § 19(a) of the Missouri Constitution. This they did by their memorandum filed in response to General Motors’ motion for summary judgment, thereby raising with particularity the issues involving construction of art. VI, § 19(a), and the authority of that section as justification for the ordinance’s adoption and application.

Respondent’s next contention that “the trial court made no ruling with respect to the constitutional issue appellants raise before this court” is also not well taken. The circuit court, in its extensive, well-reasoned memorandum opinion filed in connection with its judgment order, dealt with the issues presented and sustained respondent’s constitutional challenge to the ordinance. Implicit in the trial court’s ruling of unconstitutionality is a rejection of the Division’s art. VI, § 19(a) defense, thus providing a basis for our consideration of the cause under art. V, § 3. State ex rel. State Highway Commission v. Wiggins, 454 S.W.2d 899 (Mo. banc 1970).

Turning now to the principal issue at bar, we conclude there was no substantial evidence to support the Division’s determination and accordingly we affirm the circuit court’s order of reversal. Assuming arguendo the Division was correct in adopting, as it did, the standards of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), we find that complainant failed to prove an essential element of his employment discrimination case. Under Green, a non-class action under Title VII must show the following elements to shift to the employer the burden of justifying its refusal to hire the minority applicant: (1) plaintiff belongs to a minority; (2) plaintiff applied and was qualified for a job for which applications were sought; (3) despite these qualifications, plaintiff was rejected; and (4) the position remained open and applicants were sought after plaintiff’s rejection. 411 U.S. at 802, 93 S.Ct. 1817. The Division decided these requirements were satisfied by certain evidence which it summarized as follows:

The uneontested facts reveal that complainant, a Black man, possessed two years of recent automobile assembly work experience prior to making application at the Fisher assembly facility; that he made such application at a time when there were several assembly positions available; that within hours of commencing the (up to) 30-day process by which he might have obtained regular status at respondent’s plant, he was terminated; and that, subsequent to such termination, assembly positions remained available.

It is apparent that the Division determined the second of the elements described in Green was met by resort to eom-plainant’s previous work experience. The Division nowhere indicates whether this previous experience reflected competence to handle the job complainant applied for here. Assuming it did and that a prima facie case was made, General Motors clearly overcame that prima facie showing with evidence of complainant’s unfitness for the position. At the Division hearing, General Motors presented unrefuted evidence from several witnesses that the job to which complainant was assigned required no more than forty-five minutes to one hour of training and supervision. Complainant worked at the job for five hours. For a brief time his work was satisfactory, but his performance soon deteriorated and was so inferior that it was necessary to withdraw fifty percent or more of the pieces he installed further down the line. When the foreman attempted to point out the inadequacy of complainant’s performance, his response was, “Quit bugging me.” Complainant offered no evidence to refute that of General Motors concerning the training time necessary for the job. There was no evidence before the Division to support its conclusion that complainant was not “accorded an adequate opportunity to demonstrate whether or not he was an appropriate candidate for regular employment.” The substantial evidence in the record was to the contrary.

Although afforded ample opportunity so to do, complainant offered no evidence that other probationary employees, black or white, who were terminated on the stated ground of improper job performance, had been given more training or more time to demonstrate ability. Thus the Division’s conclusions that General Motors’ conduct towards complainant was callous, arbitrary, or indicative of discrimination, is not supported by the record. Accordingly, any inference of discrimination arising from the statistical showing that more black than white probationary employees had been terminated during a three-month period, was rebutted by plaintiff’s unrefuted evidence that complainant’s discharge was related to job performance only. In McDonnell Doughs Corp. v. Green, supra, the United States Supreme Court held the evidence adduced by the employer sufficiently refuted the plaintiff’s prima facie case and remanded the case only because the claimant had not been given an opportunity to show that the stated reason for rejecting his employment application was false or was itself being discriminatorily applied. Here, complainant had such an opportunity but failed to offer evidence that he was not given as much training and time to demonstrate his ability as were others or that such training and time was inadequate. Therefore, the Division erred in its application of the procedures and rules laid down in McDonnell Douglas Corp. v. Green.

None of the foregoing is intended to indicate that the statistical evidence that more black than white probationary employees were terminated during a three-month period is not relevant to a case of allegedly discriminatory discharge. It is a factor to be considered, especially in view of the recognized difficulty in obtaining specific evidence of discriminatory purpose in an individual case. However, the statistical compilation in this case did not support the Division’s conclusion that complainant was not given adequate training or time in which to demonstrate his competence in the face of contrary unrefuted testimony from several witnesses possessing experience in the area. Where evidence on an issue is in conflict, the Division may accept that which it chooses to believe and reject that which it does not. Courts will not interfere with such choices. Hill v. Dept. of Public Health & Welfare, 520 S.W.2d 182 (Mo.App.1975). But when, as here, the evidence on a point is uniformly to the same effect, the Division may not blindly reach a contrary conclusion unsupported by evidence. Under the federal cases, the mere existence of a racially disparate impact resulting from employment practices or employment tests, in and of itself, has not been held to sufficiently prove discriminatory purpose where the practice or test is shown to bear a demonstrable relationship to successful performance of the job. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The question of whether or not complainant received ample training and time to demonstrate his ability is a matter of proper concern for his union representatives; indeed, complainant did file a complaint with the National Labor Relations Board, which, after an investigation, rejected his claim. But in the absence of any evidence that the time and training were not adequate or that other probationary employees were treated differently, it is not the function of the Division, charged with determining discriminatory practices, to substitute its judgment of assembly line training and practices unsupported by evidence of probative value for that of the witnesses who testified on the subject. For this reason we affirm the judgment of the trial court and do not reach the other bases upon which the trial court rested its judgment reversing the Division’s order.

However, it might prove of benefit for similar proceedings in the future, to comment on another matter not raised by either party before the circuit court or in this appeal. At no time before the Division or in the circuit court was the challenged municipal ordinance offered or introduced in evidence. The employee as complainant was burdened with proving that his firing was discriminatory and violative of the ordinance’s provisions. A necessary element of his claim was the ordinance itself. In their reliance upon that ordinance, the employee and the Division, an appellant here, failed to make proof thereof or obtain a stipulation as to its adoption and terms. This prime ingredient or essential fact, indispensable for the original agency determination and for judicial review, is missing.

Courts may not take judicial notice of municipal ordinances; instead such ordinances must be admitted in evidence or stipulated by the parties. City of St. Joseph v. Roller, 363 S.W.2d 609 (Mo.1963); State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123 (Mo.App.1975); City of Rolla v. Riden, 349 S.W.2d 255 (Mo.App.1961). No such stipulation regarding the ordinance was recited or offered in evidence. Though General Motors referenced the ordinance by number in its petition for judicial review, such reference does not prove the ordinance’s terms. Pleadings as a general rule do not prove themselves. State ex rel. Phelps v. McQueen, 296 S.W.2d 85 (Mo. banc 1956); Stewart v. Brown, 546 S.W.2d 204 (Mo.App.1977). Nor was the reference to the ordinance number appearing in the employee’s complaint before the commission sufficient to bring it into the record for the court. City of Rolla v. Riden, supra. One need but ask how an agency’s determination of an ordinance violation can be reviewed and affirmed without the ordinance having been properly put in evidence before the agency, to recognize such failure of proof effectively precludes any determination as to the validity of the ordinance, and vitiates any agency decision rendered in reliance thereon. Queen of Diamonds, Inc. v. Quinn, 569 S.W.2d 317 (Mo.App.1978). However, we considered the question on the merits because it is apparent that all parties, the Division and the circuit court had the ordinance before them during these proceedings and no objection was made at any stage before the commission, the trial court or in this appeal to the movant’s failure in the first instance to make formal offer of the ordinance and proof of its adoption. We reiterate that our holding does not rest on this rule of evidence; rather, for the reasons first discussed, we find the decision of the Division was not supported by substantial competent evidence.

The circuit court under the standard of review provided in § 536.140, RSMo 1969, properly reversed and its judgment is affirmed.

MORGAN, C. J., and BARDGETT, FINCH, DONNELLY and SEILER, JJ., concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . Article VI, § 19(a), adopted at a special election October 5, 1971, reads:
      Any city which adopts or has adopted a charter for its own government, shall have all powers which the general assembly of the state of Missouri has authority to confer upon any city, provided such powers are consistent with the Constitution of this State and are not limited or denied either by the charter so adopted or by statute. Such a city shall, in addition to its home rule powers, have all powers conferred by law.
      Appellants argue that § 19(a) is authority for the city’s having adopted the fair employment practices ordinance. General Motors responds that an ordinance invalid ab initio cannot be saved by § 19(a). We will not decide this constitutional question because it is not necessary to our resolution of the case. City of St. Louis v. Missouri Commission on Human Rights, 517 S.W.2d 65, 71 (Mo.1974); City of St. Joseph v. Christgen, 513 S.W.2d 458 (Mo. 1974).

      . The circuit court held that the Division erred by employing the principles of Green rather than Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), for guidance in assessing the evidence of discrimination. The court interpreted Green to hold that under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976), “one complaining of discriminatory hiring practices had merely to show that an employer hired a disparate number of whites to blacks” in order to shift the burden of proof to the employer to show “a proper and legal reason for its refusal to hire the complainant.” Green instead sets forth the requirements for a prima facie case of racial discrimination in a non-class action which are listed later in the text of the opinion. Washington v. Davis held that claims of racial discrimination founded on the Fourteenth Amendment rather than on Title VII must make a showing of the employer’s intent to discriminate for a prima facie case. We do not reach the question of whether the principles of
        Washington v. Davis, McDonnell Douglas Corp. v. Green, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (discriminatory impact under Title VII), or any other federal case apply to this agency action under a municipal ordinance.

      . The Division’s finding made much of the fact that General Motors did not call the nurse who impliedly considered complainant’s dizziness to be feigned.
      The thrust of [General Motors’] defense is that complainant was terminated as unsatisfactory because he was feigning dizziness . . .. [W]e conclude that, but for the nurse’s diagnosis, complainant would have been retained, . . . [General Motors’] failure, after repeated requests to produce her, especially when coupled with information on record supporting complainant’s contention . . ., requires us to conclude, on balance, that the nurse’s diagnosis was in error. Our conclusion here is buttressed by our belief that complainant’s request to see a physician was reasonable on its face, and failure of the nurse to supply us with her rationale for denying that request therefore persuades us that this denial was arbitrary. Arbitrary conduct suffusing employment decisions which adversely affect minority employees is highly suspect and will not avail for purposes of rebutting complainant’s pri-ma facie case.
      The dissenting opinion in the Division’s decision found no support in the record for complainant’s contention of dizziness. Furthermore, the Division misperceives General Motors’ defense, which was that Syms was not adequately performing a relatively simple job. Nevertheless, any inference drawn from the absence of the nurse does not refute General Motors’ proof relating to its motivation for the termination. On the whole record, such absence was simply not substantial evidence, alone or with the statistical showing made sufficient to support the Division’s findings.


text:
    Gerald TURNBOUGH, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. 60593.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      Richard L. Geissal, Jr., James F. Booth, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

This appeal is from the dismissal of a second motion to vacate sentence under Rule 27.26, alleging as its principal ground, denial of due process in appellant’s criminal trial by the erroneous admission of a prior invalid conviction which improperly resulted in the prosecution and sentencing of appellant under the second offender statute. Appellant contends this issue had not been adequately raised nor ruled in his 1973 Rule 27.26 hearing because of motion counsel’s ineffective assistance in that proceeding. The case was transferred prior to opinion in the Court of Appeals to permit our review of procedures in post-conviction proceedings under Rule 27.26 and particularly questions presented by the filing of successive motions. The appeal will be treated as though originally brought in this Court.

We first review the various actions which provide the background for this proceeding. Appellant pled guilty to burglary in the Circuit Court of Greene County in 1962 and was placed on probation for an indeterminate period. In 1964 probation was revoked and appellant was sentenced to a three year prison term which he served. Although the record shows counsel participated in the 1962 plea hearing, it does not reflect counsel’s presence at the 1964 revocation and sentencing proceeding.

In 1972, appellant was tried and found guilty by a jury in the Circuit Court of the City of St. Louis on a charge of assault with intent to kill with malice. He was also charged under the Second Offender Act, § 556.280, RSMo 1969, and on proof of the prior burglary conviction, the Court imposed sentence of twenty-five years imprisonment. During the trial, appellant’s counsel had objected to the introduction of a certified copy of judgment and sentence as evidence of the burglary conviction (apparently offered and received out of the jury’s presence), arguing that it lacked proper authentication. It is particularly significant that appellant thereafter testified and on direct examination admitted his prior conviction. The judgment was affirmed in State v. Turnbough, 497 S.W.2d 856 (Mo.App.1973).

Appellant then filed his first motion under Rule 27.26 to vacate the judgment and sentence on the 1972 assault charge. The motion alleged ineffective assistance of trial counsel in failing to investigate and properly object to the introduction of the record of his prior burglary conviction because that sentence had been imposed following an uncounseled parole revocation proceeding and was thus inadmissible as evidence to permit utilization of the Second Offender Act. At the hearing on that motion in April, 1974, appellant was represented by the Public Defender. The issue of ineffective assistance of trial counsel was raised by the pleadings and argued by counsel and the record discloses the trial court questioned appellant concerning these allegations. Denying appellant relief on his amended motion, the court made these findings of fact and conclusions of law pertinent to the question here:

4. A review of the transcript discloses that the defendant was ably, effectively and competently represented by counsel.
5. The defense counsel at trial objected • to the introduction of documentary evidence substantiating the defendant’s prior conviction for burglary based on proper authentication, said doucments (sic) were accepted into evidence, in (sic) the trial court found that the defendant admitted his prior conviction and so within the provisions oft he (sic) Second Offender Act.
Conclusions of Law
1. Representation by retained defense counsel ... did not amount to farce and mockery but was effective and competent. Hobart [Holbert] v. State, [Mo.] 439 S.W.2d 507.
WHEREFORE, defendant’s motion is overruled and denied in all respects.

The judgment was affirmed on appeal, Turnbough v. State, 533 S.W.2d 609 (Mo.App.1975).

Appellant then sought habeas corpus in federal district court again asserting invalidity of his 1972 assault conviction by reason of the alleged erroneous consideration of the prior burglary in the sentencing under the Second Offender Act. The district court in Turnbough v. Wyrick, 420 F.Supp. 588 (1976), denied the petition holding that the prisoner suffered no prejudice in his 1972 conviction and sentencing because the only effect of employing the Second Offender Act was to provide a basis for determination of punishment by the court rather than by the jury which found appellant guilty. The court pointed out, 420 F.Supp. at 591, that “[pjetitioner’s guilt of both offenses as well as the fact of a valid prior conviction is unquestioned . . .,” (emphasis in original) concluding, “In our judgment, petitioner suffered no prejudice in his 1972 conviction and sentencing by reason of the absence of counsel at his 1964 sentencing following his valid conviction. The only effect of utilizing the Second Offender Act was to permit the determination of punishment by the court rather than by the jury which determined guilt.” (Emphasis in original.) The court then added, “There is, of course, no federal constitutional right to an assessment of punishment by a jury. Payne v. Nash, 327 F.2d 197 (8 Cir.1964); James v. Twomey, 466 F.2d 718 (7 Cir.1972).” Id.

Affirming in Turnbough v. Wyrick, 551 F.2d 202 (8 Cir.), cert. denied 431 U.S. 941, 97 S.Ct. 2658, 53 L.Ed.2d 260 (1977), the Court of Appeals observed that proof of the 1962 burglary conviction had been placed before the jury during the 1972 assault trial by defendant and that “[u]nder the circumstances we find petitioner is estopped to raise the question now.” 551 F.2d at 204. The 8th Circuit added this finale, id.: “Thus where [as here] the constitutional right is well known, and is a ‘trial-type’ right, and where petitioner not only fails to object but proceeds affirmatively with proof, regardless of his reason for doing so, we do not feel he can openly invite error and then later rely on the error to reverse his conviction.”

Notwithstanding the trial court’s decision in appellant’s first 27.26 motion, and affirmance by the Court of Appeals, and the denial of his petition for habeas corpus in the federal court, appellant filed his current 27.26 motion, realleging the prior claim of ineffective assistance of trial counsel and adding the new charge of ineffectiveness of motion counsel stemming from such counsel’s having failed to properly raise the charge of ineffectiveness of trial counsel. From the opinion in 533 S.W.2d 609 (Mo. App.1975), it is clear that the Court of Appeals in denying his first 27.26 motion considered whether error occurred in the 1972 sentencing under the Second Offender Act and the related contention of ineffective assistance of trial counsel. While pointing out the deficiencies of movant’s pro se brief and that of appellate counsel, the court nevertheless considered the challenge to the trial court’s alleged erroneous action imposing punishment under the Second Offender Act and concluded that under the circumstances movant had foreclosed the claim by having taken the stand and having testified on direct examination to his 1962 conviction and 1964 revocation. The Court of Appeals determined “that a bypass of the orderly state procedure had been made,” 533 S.W.2d at 613, and movant was thereby precluded from raising this issue. Stated somewhat differently, the court in effect determined in the first post-conviction proceeding that appellant’s original trial was not violative of the asserted constitutional requirements nor was the judgment otherwise void. Thus for reasons other than the alleged ineffective assistance of counsel in failing to “investigate a putative prior conviction,” appellant’s claim of error in the criminal trial was without merit. This not only vitiates his prior 27.26 motion claim of ineffective assistance of trial counsel but also bars his present complaint that counsel in the first motion failed to “properly preserve and litigate the issue raised by appellant pro se.” The issue was adjudicated by the trial court in the first motion hearing and though improperly raised on appeal was determined and set to rest in Turnbough v. State, supra. The trial court in dismissing the present post-conviction proceeding correctly concluded that the allegation, “Ineffective assistance of the first motion counsel prevented a proper presentation and adjudication of the underlying issue,” was meritless. Because the underlying issue had been raised and determined adversely to appellant on his prior post-conviction proceeding, this claim was not cognizable under Rule 27.26(d) in a second motion.

The other grounds alleged in appellant’s motion for vacating the judgment and sentence on the assault charge began with the averment that there had been a denial of due process and equal protection by the imposition of a longer sentence than that received by appellant’s “codefendant.” This contention stated no ground for relief and presented no issue of fact requiring a hearing because the punishment was within the limits imposed by law; thus, the allegation was properly denied. State v. Cook, 440 S.W.2d 461, 463 (Mo.1969). Appellant next charged ineffectiveness of counsel because of the failure to object at trial to the introduction of a gun thereby permitting the erroneous consideration of evidence of another crime. The motion’s statement of this contention was defective in two respects: (1) nothing was alleged showing why the ground had not been previously raised as required by Rule 27.26(d), and (2) the point was directed to trial error not rising to constitutional proportions, thus failing under Rule 27.26(b)(3). Finally, appellant contended he was entitled to a new trial because of newly discovered evidence consisting of an admission by appellant’s co-defendant that he, appellant, was not an accomplice. An allegation of error of this sort is generally not considered a basis for relief in 27.26 proceedings, Beishir v. State, 480 S.W.2d 883 (Mo.1972); moreover, appellant’s conclusory statement of the contention suffered the infirmity of failing to allege facts demonstrating diligence in the discovery of the evidence and why such contention could not have been previously raised. Also, this averment seems little more than an attempt to relitigate movant’s guilt or innocence and raised no fundamental error of the trial court. Claims of this nature are not contemplated by Rule 27.26. Robinson v. State, 491 S.W.2d 314 (Mo.1973).

Judgment affirmed.

MORGAN, C. J., and BARDGETT, FINCH, DONNELLY and SEILER, JJ., concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . References are to Supreme Court Rule 27.26 in 1978 Missouri Rules of Court (West).

      . During the pendency of the appeal from denial of his first Rule 27.26 motion, Turnbough, who had long, since served his burglary sentence, attacked the 1962 conviction and the 1964 parole revocation and sentencing, by petition for writ of coram nobis in the Circuit Court of Greene County. That court ruled that the conviction was valid, but because appellant had not been represented by counsel in the revocation proceeding, set aside the revocation and sentence. With the consent of appellant and his attorney, the court reimposed the three year sentence and entered an immediate order discharging appellant for the time previously served. This order was affirmed. 544 S.W.2d 894 (Mo.App.1976).

      . Movant’s current 27.26 motion presented six claims of error relative to movant’s trial. The trial court set the motion for hearing and testimony was adduced from two witnesses. The cause was continued but prior to resumption of the hearing, the State filed a motion to dismiss to which movant filed objection. Thereafter the State’s motion to dismiss was sustained. On the same date, movant requested leave to file his amended 27.26 motion; the request was denied. The record does not reflect whether the denial of leave to amend occurred before or after the unamended 27.26 motion was dismissed. This has given rise to much discussion in the briefs concerning the propriety of the court’s refusing leave to amend the motion. To permit a final disposition of the cause we shall treat the matter as though the trial court erred in disallowing the amendment and will consider both the unamended and amended 27.26 motions for their statement of a cause of action. Further, we will not consider testimony elicited at the hearing.

      . The “point” contained in appellant’s brief was described by the Court of Appeals in this manner: “The point relied on attacks no finding, judgment or conclusion of the court which heard the 27.26 motion, but attacks the finding of the trial court that he was a second offender when he was tried in 1972 for the assault. It thus raises matters not included within the findings, conclusions and judgment of the court that heard the 27.26 motion. We have nothing before us for review.” 533 S.W.2d at 612.

      . The trial court’s order of dismissal was not accompanied by findings of facts or conclusions of law. Though such procedure was acceptable under Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), it is no longer permitted. Fields v. State, 572 S.W.2d 477 (Mo. banc 1978).