1995 B.Y.U.L. Rev. 99
The conscientious attorney representing claimants for disability benefits before the Social Security Administration (SSA) [1] is constantly beset by ethical problems unique to that clientele in situations for which there is conflicting guidance under either the Code of Professional Responsibility or the Rules of Professional Conduct. Additionally, the nature of the clientele--people who are, or believe they are, either mentally or physically disabled--creates a set of problems of its own. Frequently the attorney must deal with a client who believes that she is disabled by physical impairments, but the attorney quickly concludes that the primary impairments are mental. This type of client is often the most resistant to well-meaning legal advice. Often the attorney must try to assist a client who suffers from diminished or impaired intellect to make intelligent decisions regarding complex litigation strategy. ...
Perhaps the most intractable problem facing the practitioner, however, is that of dealing with medical records or reports which appear to undercut the client's claim of disability. While the conflict that exists among competing duties of zealous or diligent representation [7] , client confidentiality [8] , and candor towards the tribunal [9] is obvious, an appropriate resolution has been elusive. The problem has been further exacerbated by disputes regarding the ability of individual administrative law judges, or the Offices of Hearings and Appeals, to promulgate their own rules and regulations of procedure, (10] and by the increasing concern of attorneys working in this area about competition from non-attorney representatives who may not be bound by the Code or the Rules. (11] Additionally, there is a lack of uniformity among the few state and local bars which have addressed this issue in some fashion (12] and a complete lack of judicial precedent in the social security context. Compounding the confusion, Congress has enacted in the Social Security Independence and Program Improvements Act of 1994, effective October 1, 1994, a provision to combat fraudulent claims, which contains language susceptible to interpretation as shedding either heat or light on the subject. (13]
At the time of this writing, a majority of states have adopted some version of the ABA's Model Rules of Professional Conduct. (42] Twelve states, however, continue to adhere to some form of the Model Code of Professional Responsibility. (43] Both the Rules and the Code have provisions which relate in some way to assiduous representation, client confidentiality and the scope of an advocate's duty to identify and produce adverse evidence.
Under the Model Code, Canon 7 provides that "A lawyer should represent a client zealously within the bounds of the law." (44] The Model Rules require "diligence" rather than zealousness per se. Rule 1.3 states, "A lawyer shall act with reasonable diligence and promptness in representing a client." (45] The ABA comment states, "A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." (46]
Both the Code and the Rules dictate the preservation of the confidentiality of information obtained from or about clients. Canon 4 of the ABA Model Code states, "A lawyer should preserve the confidences and secrets of a client." (47] The prohibition on revealing "secrets" is particularly important in this context. DR 4-101(A) states that a "'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." (48] Typically an adverse medical report would fall within this definition of "secret."
The Model Rules of Professional Conduct contain a similar, but not identical, provision. Rule 1.6(a) provides that "[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . . . ." (49]
Neither the dictate of confidentiality, however, nor that of diligence/zealousness is absolute. Under DR 4-101(C)(2), "A lawyer may reveal . . . confidences or secrets when permitted under Disciplinary Rules or required by law or court order." (50] Ethical Consideration 7-27 mandates that, "Because it interferes with the proper administration of justice, a lawyer should not suppress evidence that he or his client has a legal obligation to reveal or produce." (51] Likewise, DR 7-102(A)(3) mandates, "In his representation of a client, a lawyer shall not: . . . (3) conceal or knowingly fail to disclose that which he is required by law to reveal." (52] Nor may a lawyer "counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." (53]
Under the Model Rules, there are several provisions limiting zealousness and confidentiality. Rule 8.4(c) declares that it is professional misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." (54] Likewise, Rule 1.2(d) prohibits assisting or counseling a client to engage in conduct that the lawyer knows is criminal or fraudulent. (55] Rule 4.1(b) mandates that a lawyer shall not knowingly "fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 1.6." (56]
The provision of the Model Rules most pertinent to the social security advocate's dilemma is Rule 3.3, "Candor Toward the Tribunal." (57] The "Legal Background" to Rule 3.3 clearly anticipates that a tribunal can be either a judicial or an administrative proceeding:
Rule 3.3 imposes a duty of candor on a lawyer appearing before a tribunal in a court of law or adjudicative proceeding. While the term "tribunal" is not defined in the terminology section of the Rules, or in Rule 3.3 or its Comment, the context in which the term is used in the Rules makes it clear that "tribunal" refers to a trial-type proceeding in which witnesses are questioned, evidence is presented, the parties and their counsel participate fully, and the decision is rendered by a fact finder. (58]
Against this legal background, it is difficult to argue that an ALJ proceeding is not a proceeding before a tribunal.
Rule 3.3(a)(2) states that a "lawyer shall not knowingly . . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." (59] In an ex parte proceeding the standard is even higher. Rule 3.3(d) mandates, "In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." (60] Unfortunately, the term "ex parte proceeding" is not defined either in this section or in the terminology section of the Model Rules. (61] The official Comment to the Model Rules provides the following explanation of "ex parte proceedings:"
Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. (62]
The key question then is whether a social security hearing is an ex parte proceeding within the meaning of the Model Rules. ...
... [T]he bars in a few states have grappled with the quandary of the advocate's duty in this context. The resulting opinions vary in degree of formality, depth of analysis, and ultimate conclusion.
A. Alabama
In a brief opinion published in July 1993, the General Counsel of the Alabama
State Bar Disciplinary Commission unequivocally held that "Rule 3.3(d)
of the Rules of Professional Conduct of the Alabama State Bar applies to lawyers
participating in hearings before a Social Security Administrative Law Judge
adjudicating social security disability, retirement and survivor claims."
(88] In reaching this conclusion, the General
Counsel relied upon Professors Hazard and Hodes' handbook, The Modern Rules
of Professional Conduct, and its general discussion of ex parte proceedings
(which does not address social security proceedings), as well as one patent
case. (89]
B. Missouri
In 1989, a private practitioner in Missouri requested an opinion from the Missouri Bar Ethics Committee as to whether he was under a duty to disclose to a Social Security ALJ depositions in his possession which were taken in civil litigation prior to the filing of his client's disability claim. The attorney stated that in his opinion, "some would be helpful in her social security case, some would not matter one way or another, and a few would be harmful." (90] The General Chairman of the Missouri Bar Administration Advisory Committee responded:
It is the opinion of the Advisory Committee that a lawyer has no duty to defeat his own case. While it would be an ethical violation to violate the provisions of Rule 3.3 of (sic) Rule 4, we do not believe the duty exists to present every shred of evidence known supporting every or all positions possible in litigation. (91]
No further explanation, rationale or authority was provided in the opinion.
C. New York County
In 1993, the Committee on Professional Ethics of the New York County Lawyers Association was presented with the question of whether a lawyer representing claimants seeking social security benefits "is obliged to produce all relevant medical information about the claimant in this process, including information obtained from the clients which may be detrimental to the clients' claims, if no request is made for the information." (92]
The committee addressed this issue under New York State's Code of Professional Responsibility which is in fact a hybrid of the Model Code and the Model Rules. (93] In a well-reasoned opinion, the committee made a number of points. It began by noting the potential conflict between a lawyer's duty under Canon 4 to preserve client confidences and secrets and the lawyer's duty under Canon 7 to represent a client zealously within the bounds of the law. "Whether these interests collide in the circumstances presented depends on whether the disclosure of medical information is necessary to avoid the lawyer's presentation of a false claim for disability benefits." (94]
The committee's opinion disclaimed any reliance upon the Social Security Act and SSA regulations. The opinion addressed solely the lawyer's obligation under New York State's Code. The opinion noted, however, that "a lawyer must comply with the letter and the spirit of any statutes and regulations governing disclosure in proceedings for social security benefits." (95]
Having made that disclaimer, the committee opined,
If no law independently mandates disclosure, then nothing in the Code requires a lawyer to volunteer evidence--even evidence relevant to the matter in issue--to a tribunal or other person before whom the lawyer appears on behalf of a client. A lawyer's obligation is to present whatever evidence exists which, in the lawyer's professional judgment, best advances the client's interests in the proceeding. That the lawyer may have been given access by the client to other evidence that does not support the client's position does not alter this obligation. To the contrary, if such other evidence is provided by, or upon instructions from, the client, the lawyer may have a duty not to disclose such evidence. (96]
The opinion went on, however, to add several important caveats. First, the opinion noted:
A lawyer need not volunteer relevant evidence harmful to a client's interests, but neither may a lawyer knowingly make a false statement of fact, use perjured testimony or false evidence, or assist a client in fraudulent conduct. DR 7-102(A)(4), (5) & (7). If a lawyer is able to advance a good faith claim for benefits despite knowledge of contrary medical reports, and if none of the evidence or statements made in support of that claim is known to be false in light of such knowledge, then nothing in the Code precludes assertion of the claim. If, however, the lawyer's knowledge of the adverse medical information constitutes knowledge that the claim itself is false, then the lawyer is not free to advance the claim and must withdraw from the representation. (97]
Also, the opinion addressed situations where a doctor has issued two opinions with regard to a client which could appear to be contradictory. In the first situation, the doctor's opinion used language which has a technical meaning within the social security regulations, the attorney went back to the doctor and asked whether the doctor had intended that technical meaning, and the doctor issued a second opinion which was intended to clarify and revise the first. Based upon these facts and circumstances, the lawyer would have no reason to believe that the doctor's intention in issuing the second opinion was anything other than to correct an unintentional error in the first report. In that case it would be appropriate for the lawyer to submit only the second opinion. (98]
The committee compared that situation to another scenario where a second report from a medical treating source conflicts with a first report and clearly is intended to rescind that prior report. In that scenario, the committee opined:
the lawyer could not reasonably rely on the first report as a basis for proceeding with the claim. In that circumstance, the lawyer would not be free to offer only the first opinion as evidence, for to do so would be to present evidence that the lawyer knows to be untrue. (99]
Finally the opinion noted, "There are also circumstances when the lawyer
either must produce both medical opinions or may produce neither opinion,
even if the opinions are not contradictory. Truth cannot be measured in a
vacuum." (100]
The committee concluded that "subject to the qualifications set forth
above, a lawyer representing a claimant in a social security disability hearing
is not obligated to produce all relevant medical information if no request
is made for such information and such information does not constitute knowledge
that the claim is false." (101]
D. Virginia
In 1992, a Social Security Administrative Law Judge lodged a complaint with the Virginia State Bar asserting that a private attorney was in direct violation of Virginia DR 7-105(A), in refusing to comply with an order which the ALJ had issued directing the attorney to "submit any and all documentation in his possession pertaining to [a] claimant's alleged physical and mental impairments . . . so that a determination can be made as to whether said documentation is material to the case." (102] The attorney had previously written to this ALJ stating the position of his firm that it would comply with any request for "any specific medical record generated in the normal course of health care delivery . . . [and] any report from a doctor addressing topics you specify." (103] The attorney went on to state, "Except as noted above, we will not state whether or not we have supplied all medical evidence and we will not supply medical evidence which undermines a claimant's claim." (104] In support of this position, the attorney relied upon social security regulations and sub-regulatory material. The regulation states, "If you do not give us the medical and other evidence that we need and request, we will have to make a decision based on information available in your case." (105] A sub-regulatory document, HALLEX § I-2-524, mandates that "[a] claimant's failure or refusal to submit existing evidence that an ALJ needs and request [sic] is not a basis for denying the claim or dismissing the RH. (106] Rather, the ALJ must make a decision based on the evidence available in the case." (107] The attorney also expressed the concern that the judge's order would place a claimant represented by counsel at a comparative disadvantage to a pro se claimant. (108] This is because an aggressive and conscientious attorney will usually obtain more documents than the typical pro se claimant. Some of those documents could come back to haunt the claimant. Finally, the attorney pointed out the ALJ's authority to subpoena specific records and to obtain consultative examinations. (109]
In a thoughtful letter opinion, the Assistant Bar Counsel of the Virginia State Bar informed the ALJ that the attorney's actions did not constitute misconduct under Virginia Disciplinary Rule 7-105 and that the state bar would take no further action in the matter. (110] It is noteworthy, however, that the Virginia State Bar opinion does not purport to decide the ultimate issue of the attorney's obligation to produce the documents. The opinion cited Virginia Disciplinary Rule 7-105(A), which states, "a lawyer shall not disregard or advise his client to disregard . . . a ruling of a tribunal made in the course for [sic] proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling." (111] The Bar Counsel noted that the relevant question therefore is whether the attorney was taking appropriate steps in good faith to test the validity of such a ruling. (112]
The Bar Counsel then noted the attorney's dilemma. Under Canon 4 the attorney is required to preserve the client's confidences and secrets.
The dilemma is particularly harsh in that if [the attorney] should reveal the secrets of his client, he would likely be facing a misconduct proceeding on the violation of the rules regarding confidences and secrets. Furthermore, he would be placed in the situation of not being able to validly contest the ruling since once the information is disclosed, the effect cannot be retracted even on appeal, and therefore would be likely considered moot. (113]
The opinion concluded:
Since there is no final order in any of the proceedings effected [sic] that [the attorney] could legally pursue on appeal, [the attorney] would appear to be proceeding in the only way that he presently can to take appropriate steps in good faith to test the validity of your ruling. (114]
Under the circumstances, the Virginia Bar Counsel found that "whether
or not [the attorney] is legally correct in his reading of the applicable
laws concerning these proceedings, his actions do not constitute misconduct
in regard to Disciplinary Rule 7-105." (115]
E. West Virginia
A variation of the same issues arose in West Virginia in 1991, which ultimately involved higher officials within the Social Security Administration. The acting Hearing Office Chief Administrative Law Judge of the Charleston OHA had proposed a standard "Pre-Hearing Order" to be issued to representatives upon receipt of a request for hearing and prior to assignment of the case to an individual ALJ. (116] Claimants' representatives took exception to paragraph 3 of the proposed Pre-Hearing Order which would have required the representative to submit the following:
All relevant medical evidence as set forth in 20 C.F.R. 404.1513/416.913, including medical work-related assessments and updated clinical records from treating physicians, when the same can reasonably be produced. If a representative knows that available evidence exists which is material to the issue of disability, the representative shall submit such evidence to the Administrative Law Judge who adjudicates the case, unless the representative identifies good cause for not submitting the specific evidence and timely petitions the Administrative Law Judge in writing. (117]
Several members of the Charleston Bar who represent social security claimants signed a letter to the Charleston Acting Chief ALJ in November 1991 setting forth their objections to this proposed language. (118] The attorneys forcefully articulated the position that they "have an obligation to present evidence which is in the best interests of our client and which proves the existence of an impairment and his (her) resulting disability. We are not charged with the duty, obligation or responsibility to disprove disability." (119]
They then proposed that the West Virginia State Bar adopt a resolution in opposition to a lawyer having a duty to submit adverse evidence in a social security proceeding. (120] Following a number of meetings, the Acting Chief Administrative Law Judge for the United States issued a memorandum to the incoming Charleston Hearing Office Chief Administrative Law Judge, addressing various issues raised in the controversy. (121] This memorandum expressed a number of concerns with regard to the formality of the proposed Pre-Hearing Order, delays in scheduling hearings that it would cause, and the proposed requirement of submitting evidence in advance of hearings. (122]
Addressing the issue of an attorney's duty to produce adverse evidence and the proposed West Virginia State Bar Resolution, the Acting Chief ALJ for the United States stated his opposition to the principle that an attorney does not have a duty to submit such evidence. He cited a number of reasons. First, the U.S. Acting Chief noted that "the ALJ as fact finder is not asking the attorney to divulge any information that the Judge is not already entitled to." (123] He added, "I note that it has been a long-standing maxim of evidence law that the refusal or failure to bring before the tribunal a document whose contents are material or relevant to the issues of the case permits the tribunal to infer that the tenor of the document is unfavorable to the party's cause." (124] Furthermore, "[a] representative's refusal to submit material medical evidence to an ALJ also cannot be reconciled with Rule 3.3 of the American Bar Association's Model Rules of Professional Conduct." (125] The memorandum opined that "the Social Security disability hearing is analogous to an ex parte proceeding, in that the hearing is nonadversarial in nature, i.e., the Agency is not represented." (126]
Importantly, however, the U.S. Acting Chief Judge was careful to add, "my beliefs are based on an initial review and analysis of pertinent law and policy." (127] He noted that he had also discovered "at least one agency policy statement (which is somewhat dated) which suggests a contrary conclusion." (128] He stated that he was going "to request the Associate Commissioner to request an opinion of the Office of General Counsel on the issue." (129]
Notwithstanding the U.S. Acting Chief Judge's reservations, the West Virginia State Bar Board of Governors finally approved a resolution in April 1992 formally opposing that portion of paragraph 3 of the proposed hearing order,
which purports to require claimant's [sic] attorneys or representatives to obtain and submit evidence which may be adverse to their respective clients' interests. The State Bar is of the opinion that such a requirement is contrary to the obligation of the claimant's attorney to zealously represent his or her client and tends to denigrate the advocacy role and convert the attorney into an arm of the administration. (130]
....
* Professor of Law and Director, Disability Law Clinic, The Dickinson School of Law; J.D., Harvard Law School, 1974. The author wishes to thank Professor Linda Fisher for her assistance in providing material and insights regarding the Code of Professional Responsibility and Rules of Professional Conduct. I am also indebted to several private practitioners for their insightful reviews; you know who you are. Opinions contained herein are those of the author. (c) Copyright 1994, Robert E. Rains. All rights reserved.
1. The statutory authority for such administrative proceedings
to determine disability is found at 42 U.S.C. § 405(b).
7. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.3 (1993);
MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 4-101 (1983).
8. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1993);
MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 4-101.
9. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3; MODEL CODE
OF PROFESSIONAL RESPONSIBILITY DR 7-102, 7-106.
10. See Memorandum from Jose A. Anglada, Acting
United States Administrative Law Judge, Dep't of Health and Human Services
Office of Hearings and Appeals, to Harry C. Taylor, II, Chief Administrative
Law Judge, Charleston, West Virginia, Hearing Office (Apr. 14, 1992) (on file
with author) [hereinafter U.S. ALJ Memorandum].
11. See James Podgers, Crumbling Fortress,
A.B.A. J., Dec. 1993, at 50.
12. See discussion infra part IV.
13. Social Security Independence and Program Improvements
Act of 1994, Pub. L. No. 103-296, § 206, 108 Stat. 1464, 1509-16 (1994).
42. See SELECTED STATUTES, RULES AND STANDARDS
ON THE LEGAL PROFESSION 231-32 (John S. Dzienkowski ed., 1993).
43. Id. See also AMERICAN BAR ASS'N & THE
BUREAU OF NAT'L AFF., ABA/BNA LAWYERS' MANUAL ON PROFESSIONAL CONDUCT 01:301
(1991) [hereinafter MANUAL ON PROFESSIONAL CONDUCT].
44. MODEL CODE OF PROFESSIONAL RESPONSIBILITY Canon 7 (1983).
45. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.3 (1993)
46. Id.
47. MODEL CODE OF PROFESSIONAL RESPONSIBILITY Canon 4.
48. Id. DR 4-101.
49. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6(a).
50. MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 4-101.
51. Id. EC 7-27.
52. Id. DR 7-102.
53. Id.
54. MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.4(c).
55. Id. Rule 1.2(d).
56. Id. Rule 4.1(b).
57. Id. Rule 3.3.
58. ANN. MODEL RULES OF PROFESSIONAL CONDUCT 334 (Jeanne
P. Gray ed., 2d ed. 1992) [hereinafter MODEL RULES].
59. Id. at 329.
60. Id.emphasis added).
61. Id. at 11.
62. Id. at 332.
88. Robert W. Norris, Opinions of the General Counsel,
54 ALA. LAW. 252, 252 (1993).
89. Id. at 252-53 (citing Pfizer and Co. v. Federal
Trade Commission, 401 F.2d 574, 579 (6th Cir. 1968), cert. denied,
394 U.S. 920 (1969)).
90. Letter from Dewey L. Crepeau, Partner, Crepeau &
Roberts, to Harold Barrick, Missouri Bar Ethics Committee 1 (April 7, 1989)
(on file with author).
91. Letter from Harold W. Barrick, General Chairman, Missouri
Bar Administration, to Dewey L. Crepeau, Partner, Crepeau & Roberts 1
(April 19, 1989) (on file with author).
92. Comm. on Prof. Ethics of the N.Y. County Lawyers' Ass'n,
New York County Lawyers' Ethics Opinion, N.Y.L.J., Sept. 9, 1993,
at 2.
93. MANUAL ON PROFESSIONAL CONDUCT, supra note
43, at 01:38-01:40.
94. New York County Lawyers' Ethics Opinion, supra
note 92, at 2.
95. Id.
96. Id.
97. Id.
98. Id.
99. Id.
100. Id.
101. Id.
102. The Court's Order of April 9, 1992, directing claimant's
counsel to submit evidence (on file with author).
103. Letter from Charles H. Cuthbert, Jr., Partner, Cuthbert
Law Offices, P.C., to an Administrative Law Judge, Social Security Administration
1 (Mar. 26, 1992) (on file with author).
104. Id.
105. Id. at 2 (citing 20 C.F.R. § 404.1516 (1994))
(emphasis omitted).
106. "RH" refers to a Request for a Hearing.
107. SSA HALLEX § I-2-524 (citing 21 C.F.R. §§
404.1516, 416.916).
108. Letter from Charles H. Cuthbert, Jr., supra
note 103, at 1.
109. Id. at 3.
110. Letter from Richard C. Vorhis, Assistant Bar Counsel,
Virginia State Bar, to an Administrative Law Judge, Social Security Administration
(Aug. 18, 1992) (on file with author).
111. Id. at 2 (quoting MODEL CODE OF PROFESSIONAL
RESPONSIBILITY DR 7-106(A)).
112. Id.
113. Id. at 2.
114. Id.
115. Id. at 3.
116. [Proposed] Pre-Hearing Order issued by Charleston,
West Virginia, Office of Hearings and Appeals, Social Security Administration
(on file with the author).
117. Id. at 2.
118. Letter from Frederick G. Barkus, et al., Partner,
Bickley, Jacobs & Barkus, to Charlie Paul Andrus, Acting Chief Administrative
Law Judge, Charleston, West Virginia, Office of Hearings and Appeals (Nov.
7, 1991) (on file with author).
119. Id. at 2.
120. Id.
121. U.S. ALJ Memorandum, supra note 10.
122. Id.
123. Id. at 3.
124. Id.
125. Id. (citing rule 3.3(d) relating to ex parte
proceedings and adverse facts).
126. Id. at 3-4.
127. Id. at 4. Presumably, this is a reference
to HALLEX § I-2-524, cited by the Virginia attorney in his response to the
ALJ. See supra notes 103-109 and accompanying text.
128. Id.
129. Id.
130. Resolution of the West Virginia State Bar (Apr. 23,
1992) (on file with author).