THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   341/2012
Reportable

In the matter between:

THE LAW SOCIETY OF THE CAPE
OF GOOD HOPE                                                                    APPELLANT

and

MICHAEL WHARTON RANDELL                                 RESPONDENT

Neutral citation: Law Society of the Cape of Good Hope v MW Randell
(341/2012) [2013] ZASCA 36 (28 March 2013)

Coram:
Mthiyane DP, Majiedt JA and Van der Merwe, Swain
and Mbha AJJA

Heard:
21 February 2013
Delivered:
28 March 2013

Summary: Application for stay of civil proceedings pending finalisation of
criminal proceedings ─ nature of discretion vesting in the court to grant stay
─ accused not compelled to make statement in civil proceedings ─ right to
remain silent not violated ─ prejudice justifying intervention not shown.

_____________________________________________________________________

ORDER

On appeal from: Eastern Cape High Court, Grahamstown (Smith J
sitting as court of first instance):

The appeal is upheld with costs on an attorney and client scale, and the
order of the court a quo is set aside and replaced with the following.
‘The application is dismissed with costs on an attorney and client scale.’
___________________________________________________________

JUDGMENT

MTHIYANE DP (MAJIEDT JA AND VAN DER MERWE, SWAIN
AND MBHA AJJA.CONCURRING)

[1] The respondent, Michael Wharton Randell, is a duly admitted
attorney of the high court practising as such in Port Elizabeth. He is
currently facing charges of fraud and theft involving a sum of R2,4
million which he together with two other persons are alleged to have
misappropriated while they were trustees of the Greenwood Property
Trust (the Trust), the sole beneficiary of which was the Greenwood
Primary School, Port Elizabeth (the school). The criminal proceedings
against the respondent are still pending.

[2] Prior to the disposal of the criminal proceedings of the appellant,
the Law Society of the Cape of Good Hope, launched an application in
the Eastern Cape High Court for the removal of the respondent’s name
from the roll of attorneys. The application is based on the same facts
which are the subject of the criminal proceedings pending against the

respondent in the Commercial Crimes Court in Port Elizabeth. Without
filing an answering affidavit in opposition to the application to strike him
off, the respondent launched a counter application for a stay of the
striking off application, pending the disposal of the criminal proceedings.

[3] The question arising in this appeal is whether the court below was
entitled to grant a stay of the civil proceedings, even though there was no
compulsion on the respondent to file an answering affidavit in opposition
to the striking off application. There is a further aspect to be considered
and it is the question whether the respondent proved that he will suffer
prejudice if he made a sworn statement in opposition to the striking off
application. The appeal is with leave of the court below.

[4] A brief history of the matter is necessary to put the legal and
factual issues in this case in proper context. The respondent was one of
the three trustees of the Trust which was established in 1999. The sole
beneficiary of the trust, was as I have said, the school.

[5] In 1999 the Trust purchased land and buildings adjacent to the
school (the property) for a consideration of R500 000. The Trust in turn
leased the property to the school and the rental was used to cover
instalments on the mortgage bond finance provided by the Standard
Bank.

[6] During the period March 2005 to August 2005 the trustees
amended the trust deed and established themselves as trust beneficiaries.

[7] On 21 April 2006 the trust sold the property to a developer for
R3,5 million, the developer also agreeing to fund the erection of a facility
on the school’s grounds to the value of R1,5 million.

[8] On 27 June 2006 the trustees met and resolved that R2,4 million of
the purchase price was to be distributed to the respondent and the other
trustees.

[9] Mr S C Kapp, a chartered accountant and partner of Mozars
Moores Rowland, the auditors of the school and the accountants of the
trust, queried this transaction and when he did not receive what he
considered to be a satisfactory explanation he concluded that the trustees
had misappropriated the sum of R2,4 million. A further unsatisfactory
feature in his view was the amendment of the trust deed by the
respondent and his co-trustees, the appointment of themselves as the
additional beneficiaries, the amount of the purchase consideration and the
distribution of R2,4 million amongst themselves, all of which took place
without the knowledge of the school’s governing body. Mr Kapp decided
to report the matter to the police and the respondent was as a consequence
duly charged for fraud and theft.

[10] In the light of the above facts the appellant concluded that the
respondent had made himself guilty of dishonourable, dishonest and
disgraceful conduct which was of such a nature that he was not a fit and
proper person to continue practising as an attorney. In terms of its
obligation under s 22(1)(d) of the Attorneys Act 53 of 1979, the appellant
launched an application for the removal of the respondent’s name from
the roll of attorneys.

[11] It is these proceedings that the respondent sought to have
postponed pending the finalisation of the criminal proceedings against
him. He submitted that by making a sworn statement in advance of the
criminal proceedings he might be prejudiced and his right in terms of s
35(1)(c) of the Constitution, not to be compelled to make any confession
or admission that could be used in evidence against him, might be
violated. He also claimed that he was entitled to remain silent pending the
finalisation of the criminal trial and that his right to do so under s 35(1)(a)
of the Constitution would be compromised.

[12] The respondent’s contentions found favour with Smith J. In
granting a stay of the application the learned judge cited the general
principle articulated by Corbett J in Du Toit v Van Rensburg 1967 (4) SA
433 (C) at 435H, which is to the following effect:
‘. . . [W]here civil proceedings and criminal proceedings arising out of the same
circumstances are pending against a person it is the usual practice to stay the civil
proceedings until the criminal proceedings have been disposed of.’
In the judge’s view ‘[t]he principle at the root of this practice is that the
accused might be prejudiced in the criminal proceedings if the civil
proceedings were heard first’. He disagreed with the approach adopted in
Davis v Tip NO 1996 (1) SA 1152 (W). After alluding to the principle at
the root of the practice of staying civil proceedings until the criminal
proceedings had been disposed of in certain circumstances, the judge said
the court has only to be satisfied that there is a danger that the accused
person might be prejudiced in the conduct of his defence. He stated that
the ‘qualification that there must be an element of state compulsion
before a court can stay civil proceedings under these circumstances, was
superimposed for the first time in the Davis case’. I do not agree. In my
view the golden thread that runs through the previous cases that were

considered in Davis (Du Toit; Irvin & Johnson Ltd v Basson 1977 (3) SA
1067 (T); Kamfer v Millman & Stein NNO 1993 (1) SA 122 ( C)) to
mention just a few) is that they all involved sequestration proceedings, in
which the examinee respondent was required to subject himself or herself
to interrogation or to answer questions put to him or her by the
provisional trustee. Clearly in each one of those cases there was an
element of compulsion because s 65 of the Insolvency Act prior to its
amendment provided that the person concerned was not entitled to refuse
to answer questions. The examinee’s position was only ameliorated by
the intervention of the court in the exercise of its discretion which in most
cases involved directing that the examinee should not be interrogated
(Gratus & Gratus (Prop) Ltd v Jackelow 1930 WLD 226 at 231). This is
how the general principle was applied long before Davis. The element of
compulsion is not something that was introduced or superimposed by the
decision in Davis.

[13] The approach adopted by the court below is, with respect,
erroneous in two important respects. The first involves its broad
formulation of the general principle applied in determining whether a stay
should be granted where civil and criminal proceedings arising out of the
same circumstances are pending against a person and there is a likelihood
of prejudice to the person concerned if he or she made a statement prior
to the disposal of the criminal proceedings. On the approach adopted by
the court below, the power to grant a stay under these circumstances
would be unlimited. One would envisage a situation where a stay will be
refused because, as Nugent J correctly pointed out in Davis, civil
proceedings invariably create the potential for information damaging to
the accused person being disclosed by the accused person himself, not

least so because it will often serve his or her interests in the civil
proceedings to do so.

[14] The second important respect in which the court erred is with
regard to the application of the principle to the facts. In my view the
respondent failed to show that he would be prejudiced if the application
to strike him off the roll was proceeded with. I will deal more fully with
this aspect later in the judgment.

[15] I turn now to the general principle, as it applies where there are
both criminal and civil proceedings pending which are based on the same
facts. The usual practice is to stay the civil proceedings until the criminal
proceedings have been adjudicated upon, if the accused person can show
that he or she might be prejudiced in the criminal proceedings should the
civil proceedings be heard first. (Du Toit at 435H-436B; Irvin & Johnson
at 1072H-1073B; Kamfer at 125E-126D; Davis at 1157B-E.

[16] A series of previous decisions in this connection have dealt with
applications for a stay in the context of sequestration proceedings pending
the determination of the criminal proceedings. In those cases the
examinee respondent was obliged to submit to compulsory interrogation
in terms of s 65 of the Insolvency Act and to answer questions put to him
or her by the provisional trustee. The general approach of the courts in
this regard was not to stay the sequestration proceedings, but rather to
ameliorate the potential prejudice by directing that, pending the disposal
of the criminal proceedings there should be no interrogation of the
insolvent (see Gratus at 231). In Gratus the applicant had applied for
sequestration of the estate of the respondent whom it had formerly
employed as a clerk whilst criminal proceedings on a charge of theft were

still pending against him. The charge related to the money the respondent
had allegedly stolen from the applicant. The respondent applied for a stay
of the sequestration proceedings pending the finalisation of the criminal
proceedings. He contended that any statement he made in the
sequestration proceedings would seriously prejudice him in his defence at
the criminal trial. The court refused to grant a stay of the sequestration
proceedings but to avoid possible prejudice to the respondent, it ordered
that he not be examined under the Insolvency Act or interrogated by the
provisional trustee. One would then immediately realise that the court
intervened to ameliorate any state compulsion that existed arising from
the obligation on the part of the examinee respondent to answer questions
put to him in the interrogation which was sought to be pursued under the
Insolvency Act. This occurred long before the decision in Davis.

[17] Under s 65(2) of the Insolvency Act, compulsion flowed from the
fact that the examinees could not decline to answer any question upon the
ground that the answer would tend to incriminate them, or upon the
ground that they were to be tried on a criminal charge and might be
prejudiced at such trial by their answers. Their opposition was
ameliorated by the subsequent amendment. Section 65(2A) now provides
for some protection to persons under interrogation. The new section
requires that part of the proceedings in which they are required to answer
such questions should be held in camera and further that their answers to
such questions should not be published. Prior to the amendment the
information elicited at these proceedings had generally been admissible in
subsequent criminal proceedings. It is for this reason that a practice
developed whereby civil proceedings were stayed until criminal
proceedings arising from the same facts had been disposed of. (Du Toit at
435H).

[18] In the present matter the respondent is under no compulsion to
respond to the allegations in the striking off application. In this appeal we
are requested to consider the question of how the court should deal with
the situation where a party who faces criminal proceedings is called upon
to answer allegations in related civil or disciplinary proceedings, without
being compelled to do so. The party concerned may be faced with the
choice of abandoning a defence to the civil or disciplinary proceedings or
waive his right to remain silent. This is the position in which the appellant
finds himself. In Davis the court had to consider a situation which is not
dissimilar to what we are dealing with in the present matter. In that case
there was no legal compulsion on the respondent to testify. The court held
that the preservation of his rights lay entirely in his hands. The court had
to consider an application to review a ruling by a chairperson of a
disciplinary enquiry, refusing an application by an employee of the
Johannesburg City Council for a stay of the disciplinary proceedings
pending the final determination of the criminal charges of fraud and theft.
The court upheld the chairperson’s refusal to stay the disciplinary
proceedings pending the determination of the criminal proceedings and
dismissed the application for review.

[19] As I have said, Nugent J pointed out that civil proceedings
invariably create the potential for information damaging to an accused
person to be disclosed by the accused person himself, not least because it
will serve his or her interest in the civil proceedings. He emphasised that
where the courts have intervened, there has been a further element, which
has been a potential for state compulsion to divulge information. He
pointed out that even in those cases the courts have not generally
suspended civil proceedings, but have in appropriate cases ordered that
the element of compulsion should not be implemented. I have already

referred to how the court in Gratus refused to grant a stay of the
sequestration proceedings but ameliorated the prejudice by directing that
the respondent not be examined under the Insolvency Act or interrogated
by the provisional trustee. (Gratus at 231.)

[20] The approach of Nugent J in Davis has been followed in a number
of subsequent cases, eg Fourie v Amatola Water Board (2001) 22 ILJ
C94 (LC); Gilfillan t/a Grahamstown Veterinary Clinic v Bowker 2012
(4) SA 465 (E); Seapoint Computer Bureau (Pty) Ltd v McLoughlin & De
Wet NNO 1997 (2) SA 636 (W); Nedcor Bank Ltd v Behardien 2000 (1)
SA 307 (C). In Seapoint Navsa J followed and applied the principle in
Davis and stressed that in principle a party should be left to his or her
choice as to how he or she conducts the civil proceedings. The learned
judge pointed out that allegations in pending criminal investigations or
proceedings, without indicators that state compulsion or coercive means
are to be employed in the civil proceedings, are not sufficient to prove
prejudice of a kind that will justify a stay (at 649H-I).

[21] In Equisec (Pty) Ltd v Rodriguez & another 1999 (3) SA 113 (W)
Nugent J again had the opportunity to express himself on the subject. He
was called upon to consider an application for a stay of sequestration
proceedings until such time as the related criminal proceedings had
reached finality. Alluding to the dilemma in which a party requesting a
stay found himself, he remarked (at 115A-C):
‘Where a person is accused of having committed an act which exposes him to both a
civil remedy and a criminal prosecution, he may often find himself in a dilemma.
While on the one hand he may prefer for the moment to say nothing at all about the
matter so as not to compromise the conduct of his defence in the forthcoming
prosecution, on the other hand, to do so may prevent him from fending off the more
immediate civil remedy which is being sought against us.

When he finds himself in that dilemma he might appeal to a court to resolve it for
him, which is what has occurred in the case which is now before us.’

[22] The judge elaborated further as follows:
‘There are two circumstances in which the first respondent will face the prospect of
disclosing information which may be relevant to whether he has committed the
offence with which he is now charged. (at 116A-E)
Firstly, he is called upon in these proceedings to answer the allegations made against
him by the applicant in the founding affidavit if he is to avoid his estate being placed
under a final sequestration order. There is, of course, no legal compulsion upon him to
do so. Whether a court should intervene to relieve a person of the perhaps difficult
choices he faces in that regard was considered by me in Davis v Tip No and Others
1996 (1) SA 1152 (W). . . . I see no reason to depart from the conclusion which was
reached in those cases. In my view, the choice which the first respondent may face
between abandoning his defence to the civil proceedings or waiving his right to
remain silent (cf Templeman LJ in Rank Film Distributors Ltd and Others v Video
Information Centre and Others [1982] AC 381, especially at 423D-G) does not
constitute prejudice against which he should expect to be protected by a Court and I
would not exercise my discretion in favour of the first respondent on those grounds
alone.’

[23] In my view the approach in Davis is sound and does no more than
reiterate the approach of the previous decisions; namely that a stay will
only be granted where there is an element of state compulsion impacting
on the accused person’s right to silence. It is true that the judges in those
cases do not specifically refer to compulsion but this is a matter of
deduction made from the way the general principle was applied in matters
which primarily involved sequestration proceedings. The development
and formulation of the principle occurred in the context of sequestration
proceedings. There is no authority to support the proposition that the
principle is of application in ordinary civil proceedings not involving an

element of compelled response on the part of the party who seeks a stay
of civil proceedings. Our courts have only granted a stay where there is
an element of state compulsion.

[24] This also appears to be the approach in certain foreign
jurisdictions. In Jefferson Ltd v Bhetcha [1979] 2 All ER 1108 (CA) at
1112-1113 the Court of Appeal in England dismissed an application by
an accused person for the stay of civil proceedings for the recovery of
moneys pending the finalisation of the related criminal proceedings. In
dismissing the application the court emphasised that there was no
established principle of law that if criminal proceedings were pending
against a defendant in respect of the same subject matter, he or she should
be excused from taking any further steps in the civil proceedings which
might have the result of disclosing what his defence or is likely to be, in
the criminal proceedings.

[25] Jefferson was followed in R v BBC, x p Lavelle [1983] 1 All ER
241 (QBD) at 255 where Woolf J stressed that there should be no
automatic intervention by the court. The learned judge pointed out that
while the court must have jurisdiction to intervene to prevent serious
injustice occurring, it will only do so in very clear cases in which the
applicant can show that there is a real danger and not merely notional
danger that there would be a miscarriage of justice in criminal
proceedings if the court did not intervene.

[26] In V v C [2001] EWCA Civ 1509, the court of appeal in deciding
whether a stay of proceedings should have been granted because the
privilege against self-incrimination constrained the defendant from
putting forward a defence, pointed out that there was no absolute right for

a defendant in civil proceedings not to have judgment entered against him
or her simply because the privilege against self-incrimination was raised.
The court refused the appeal on the basis that there was no need for the
stay. It held that the defendant was entitled to enjoy the privilege against
self-incrimination but if he was to exercise it he would have to suffer the
consequences in the civil proceedings.

[27] Turning to the facts of this case the judge in the court below
proceeded from the assumption that prior to Davis the applicable legal
principle was that where civil and criminal proceedings arising out of the
same circumstances were pending, the civil proceedings had to be stayed
and that the question of compellability was a later requirement introduced
for the first time. He asserted that the element of compulsion was not
required in Du Toit and that Corbett J considered the legal principle to be
of application if there was likelihood that the accused person would be
prejudiced.

[28] The interpretation and the application of the principle in Du Toit as
articulated and applied by the judge a quo is, with respect, not entirely
accurate. The question of compellability has always been regarded as a
relevant factor in a court’s approach to the determination of whether a
real likelihood of prejudice has been established. In Du Toit, and so too in
Gratus and other cases mentioned earlier, there was an element of
compulsion. It is for that reason that Corbett J in Du Toit made an order
that ‘the examination or interrogation of the respondent in terms of the
Insolvency Act shall not take place pending the finalising of the
application for sequestration’. The object of crafting the order in those
terms was to ameliorate the impact of the compulsion contained in s 65(2)
(prior to its amendment), in terms of which the examinee respondent was

‘not entitled at such interrogation to refuse to answer any questions upon
the ground that he is to be tried on a criminal charge and maybe
prejudiced at such trial by his or her answers’. A similar example of
intervention is also to be found in Gratus where in order to avoid possible
prejudice to the respondent, the court ordered that he not be examined
under the Insolvency Act or interrogated by a provisional trustee. Absent
any compulsion under the relevant provisions of the Insolvency Act the
courts in Du Toit, Gratus and the other cases I have referred to above,
would have been slow to grant a stay of the civil proceedings.

[29] If the approach adopted in the court below is taken to its logical
conclusion, in every case where civil and criminal proceedings are
pending and there is a likelihood of prejudice, the court will be vested
with unlimited jurisdiction to stay the civil proceedings until the criminal
proceedings have been finalised, even where there is no compulsion on
the part of the person concerned to disclose his or her defence ─ where
the person concerned is faced with a ‘hard choice’.

[30] It seems to me that the nature of the discretion to be exercised by
courts in cases such as this is very limited in scope and ambit. In Davis
the discretion was described by Nugent J as follows (at 1157D-E):
‘Although the principle has been articulated in the language of a discretion, this may
be misleading. I do not understand the decided cases to have held that a Court may
direct the civil proceedings to continue even where it has been found that they may
prejudice an accused person. On the contrary, it is clear that once the potential for
prejudice has been established the Courts have always intervened to avoid it
occurring. In that sense then it has no discretion.’
The judge pointed out further that the potential for prejudice is limited to
cases where there is a further element present, namely ‘the potential for
State compulsion to divulge information’. (at 1157F-G)

[31] I agree with the approach in Davis. I also think that to extend the
court’s intervention to cases where an applicant for a stay of the civil
proceedings has a ‘hard choice’ to make, would bring the right to remain
silent into disrepute. The ratio for the discretion being narrowly
circumscribed is that a distinction must be maintained between the
situation where an individual has the choice whether to testify (even
though the alternatives over which he has a choice are equally
unattractive) and where he is compelled to because a failure to do so
attracts a penalty. (at 1158H-J). According to the decision in Davis this is
necessary to ensure that the ‘salutary principle’, enshrined in the right to
silence is not to be extended beyond its true province and thereby risk
falling into disrepute (at 1158I-J).

[32] The respondent in this case falls outside the category of parties
who are subject to compulsion to testify or to disclose their defence. He
has a ‘hard choice’ to make as to whether he should respond to the
allegations in the striking off application or face the consequences of not
responding. In my view, the learned judge’s broad formulation of the
general principle applicable to applications for a stay was erroneous. The
only prejudice the court below referred to was that ‘making a sworn
statement in opposition to the main application might serve to prejudice
the respondent in the conduct of his defence in the criminal matter’. The
respondent however denies any wrongdoing and if he were to respond,
would in any event probably file an exculpatory statement. Any claim to
violation of the respondent’s right to silence appears to be illusory. On
the papers the respondent has already disclosed essentials of his defence
when he filed a plea in a related civil matter. Significantly he has not
sought to stay those proceedings. I do not see how he could claim that

filing an answering affidavit in the striking off application would
prejudice him.

[33] The matter is of huge public importance. The respondent is an
officer of the court whose position requires scrupulous integrity and
honour. He is facing grave allegations of dishonesty and impropriety. In
assessing prejudice generally the judge a quo regrettably appears to have
focused solely on the respondent’s practice. He pointed out that there was
no evidence of wrongdoing in the respondent’s trust account. This
appears to avoid the issue because probity and fitness to remain in office
of an attorney does not depend solely on whether the attorney’s trust
account is intact. These are factors which the judge a quo should also
have taken into consideration in the overall consideration of the question
of prejudice. It was prejudice not only to the respondent that he had to
consider but also the protection of the public interest. In failing to
consider the above factors, the judge erred.

[34] Before concluding, I would like to refer to a further point made by
the respondent’s counsel during argument. Counsel submitted that the
application for a stay of the striking off proceedings was interlocutory
and therefore not appealable. The argument is without merit. The order
by Smith J to stay the application to strike off was final in effect, in that it
disposed of all the issues relevant to the said application. In any event, the
contention advanced on the respondent’s behalf is in conflict the decision
of this court in Clipsal Australia (Pty) Ltd v GAP Distributors 2012 (2)
SA 289 (SCA), in which an application to stay contempt proceedings was
held to be appealable.

[35] In the result the appeal is upheld with costs on an attorney and
client scale, and the order of the court a quo is set aside and replaced with
the following.
‘The application is dismissed with costs on an attorney and client scale.’

______________________

K K MTHIYANE
DEPUTY PRESIDENT

APPEARANCES

For Appellant:
S Rosenberg SC
Instructed by:
Bisset Boehmke McBlain, Cape Town
Webbers, Bloemfontein

For Respondent:

M Osborne
Instructed by:
Nettletons, Grahamstown
Claude Reid Inc, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 March 2013

STATUS

Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

THE LAW SOCIETY OF THE CAPE OF GOOD HOPE v MW RANDELL
(341/2012) [2013] ZASCA 36 (28 MARCH 2013)

Today the Supreme Court of Appeal (SCA) upheld an appeal by the Law
Society of the Cape of Good Hope, against a judgment and order of Smith J in
the Eastern Cape High Court, Grahamstown, in which he granted an order
staying the application to strike off Mr Michael Wharton Randell. Mr Randell is
facing charges of fraud and theft arising out of his alleged misconduct as one
of the trustees of the Greenwood Property Trust.

The Greenwood Primary School was the sole beneficiary of the Trust.

It is alleged that Mr Randell and his co-trustees collaborated to add
themselves as beneficiaries and later appropriated R2.4 million from the trust.

When the Law Society applied to have Mr Randell’s name removed from the
roll of attorneys, he successfully applied to have the striking off proceedings

stayed pending the finalisation of the criminal proceedings against him. He
argued that he would be prejudiced in his defence in that he would be obliged
to show his hand and his right to remain silent would be violated. He had
already, denied the allegations against him in a related civil matter.

The Eastern Cape high court agreed with him but the SCA disagreed, holding
that that Mr Randell was not entitled to a stay of the civil proceedings, where
there was no compulsion on him to enable a sworn statement in his defence
in apportion to the striking off application. The SCA held that when he had a
choice, either to respond or not, the court ‘could not intervene’. The court also
pointed out that Mr Randell had failed to show that he would suffer prejudice if
he made a statement because he had in any event denied that he had been
guilty of any wrongdoing.

Accordingly the appeal by the Law Society was upheld by the SCA and the
order of the Eastern Cape high court was altered to one dismissing Mr
Randell’s application for a stay with an order, and further dismissed his
application for a stay of the striking off proceeding with costs on an attorney
and client scale.