NY Professional Responsibility | Lawyer | Confidentiality

NY Professional Responsibility Commonly tested areas: y Regulating lawyers y What does it mean to practice law?

y Establishing your practice and getting clients y The lawyer-client relationship y Conflicts of interest y Handling money- yours and clients y Being professionally responsible I. Regulation A. Regulated by: NY Rules of Professional Conduct B. Complaints investigated by the Grievance Committee. y The complaint is a privileged communication- it s private and there is no c/a for defamation C. Four types of discipline: 1. Admonishment- a letter, slap on the rest 2. Public or private censure by the courts 3. Suspension of license a. Can t practice or share legal fees earned during period of suspension 4. Disbarment Note: also there are malpractice claims by clients or third parties Admission to the profession Admission to bar must be rationally related to the practice of law Ex. graduate from law school y In NY, admission may be allowed for someone who has completed one year of law school and studied under supervision of a NY attorney for 3 years. NY admission rqmts: pass bar &mpre Admission w/o exam if: y graduated from ABA accredited law school y was admitted in a state with reciprocity provided they practice law for at least 5 of last 7 years Rqmts for applying to the bar: y truth& full disclosure i.e. good moral character y duty to fully cooperate Rqmts regarding other applicants y Good applicants: Your input is aspirational.

Other states will make an independent determination of whether the conduct violates that state s ethical rules.2 pronged duty if you know of a violation: 1. the duty of confidentiality will trump the duty to report the misconduct to the bar. associate w/ an active local lawyer ii. Ally is disciplined for not reporting denny s violation. then NY rules apply. Done on the basis of: comity (reciprocal discipline). bribery. Ex. b. Lawyer must report substantial rule violation by another lawyer 2. Attny Jerry springer licensed in both NY and IL. perjury. a. anything reasonably related to the lawyer s home state practice v. 2. Hypo: if a lawyer learns of another s bad conduct through representation. mediation or arbitration out of state-practice iv. Discipline in one state may not mean discipline in another state. Choice of law in multi-jx matters: a. . rules of the state in which the lawyer principally practices will applyunless the conduct s predominant effect is in another state.y Bad applicants: you must report conduct involving moral turpitude ex. If licensed in NY only. b. but the lawyer may NOT recommend the lawyer for admission in another state.can t do it! Permissible types of temporary multi-jx practice allowed in other states by NY lawyers: i. filing a false tax return is a crime of moral turpitude Regulation after admission Regulated by highest state court and through its agencies Sefl-regulating profession. Lawyer must be available to testify Hypo: Denny will be disciplined for keeping client funds. For lawyers who practice in more than one state 1. Unauthorized practice of law (UPLA). then the OTHER state s rules apply. If admitted in NY and another state. and the rules of conduct of the state of NY will be applied in NY (principal place of practice). iii. special permission pro hac vice for one case. The investigation for his conduct will occur both in NY and IL. G. His primary residence is NY but while in Las Vegas gets arrested for DUI. multi-state firms: lawyer only practices where admitted and firm letterhead indicated state of attorney s admission.

Lawyer suffers physical or mental disability c. settlement. choosing between a jury trial or a bench trial ii. Client fires the lawyer. C. While drinking in Vegas. Ex. II. In NY. you must have a guardian appointed. Lawyer must report the lawyer.client decides Ex. appeal. Lawyer must withdraw when: a. an attny can take protective action and substitute judgment for a client if: y client has diminished capacity. B. If the client s claim or defense is frivolous b. d. Note: Attorney s must abide by client s wishes unless doling so would be illegal. Client s decisions: i. Client uses services to perpetrate crime or fraud. c.even for extremely low settlement offer ex. Who makes final decisions in legal matters? a. Discovery methods to use ii. Lawyer should only take cases she is competent to handle or encourage client to seek other counsel. unethical or immoral. lawyer finds out about jury tampering by opposing counsel. 2. y If client loses capacity or is a minor. b. but it s the client s decisionwhether to appeal the judgment. $ 1. *Client deliberately disregards an agmt or obligation to the lawyer. g. procedure. Testifying in a criminal case b. Lawyer knows representation will result in violation of rules for law. f. What does it mean to practice law? A. Your inability to work with co-counsel hurts client. Lawyers have a right to reject all cases but they should take cases involving the oppressed or defenseless and should do their share of pro bono work. Granting adjournments that do not prejudice rights of a party C. Lawyer knows client is taking steps solely to harass or maliciously injure another. Lawyer may withdraw a. a client in Il has his case dismissed b/c Jerry failed to show up.Ex. Jerry s conduct will be investigated in both NY and IL. Employment will likely result in violation of PRC. and y cannot adequately act in her own interests. Attorney decisions: strategy. client makes final call on settlement. Commence an action. . and the rules of the state of IL will apply in NY. 1. e. d. Client persists in a criminal or fraudulent manner. and tactic i.73. and y is at risk of substantial physical financial or other harm. You are a layer 24/7 whether or not in your personal life or not.

EXCEPT: 1. You must be certified by a private organization. can stay on the letterhead. C. Ad should not suggest you are more qualified than another lawyer. A paralegal may not do so. You can overcome comp. In a sale of a law practice III. Appearances in judicial actions that rq s a license. This also applies when you are certified by another state. Competence includes: i. I m going to leave firm. 3.approved by the ABA or NY State. lawyer sends secretary to make an appearance. Ex. Trade names NOT permitted in NY (it is permitted in ABA) ex. Ex. the law firm of NY 3. Drafting legal documents ex. iii. 2. work. Do not hold yourself out as aspecialistunless you are certified. Holmes etc. You may not enter into a noncompete agmt or provision w/ current partners or associates. Ex. 1. Lawyer can be disciplined for sending secretary to perform task only lawyer can perform. The firm name must NOT be misleading. 1. An agmt re: benefits on retirement. 2. Comp. lawyer broke hand. What is the practice of law?Every activity that requires a license. Examples: 1. Permissible b/c attny has oversight on the document. Certifying org. iv. will or contracts 3. So you can t call your firm: Cardozo. Establishing your practice and Getting clients A. in the substantive law. ii. Ex.h. Having sufficient time to devote to matter. even though suspended. taking a deposition. 20 years of practice in sports law is not enough to be certified. E. Lincoln s name. Physical or mental comp. Permissible. must be identified in the ad. You can include the name of a deceased partner in the firm name as long as attny practiced at the firm while alive. Hindering a lawyer s future right to practice. 4. You cannot name your firm Aaabest law firm in order to be 1st in phonebook 2. 5. I forgo benefits. Do not help others practice in UPL. 2. Settling cases for clients Ex. it is ok to say what you concentrate in. byassociation with a competent lawyer or becoming competent in the area. Hypo: Holmes name must be removed b/c he is now in full-time govt. B. but if I practice in Albany County in next 5 years. D. However. Advertising . Secretary types document and sends it.

list serves. chatrooms. ii. blogs. popup ads. 6. provided that: all pages include firm name. (must be fluent!) v. (super lawyers probably ok if a bona fide service). winner. Ads may also include. Names of regularly represented clients w/ their consent vi. Ads must include: i. contingent fees rates (and if does so. Any words must be clearly legible and understood. i. Memberships. Name. Dates of admission to bar and areas of practice. Ads contained in a computer must be retained for not less than 1 year. email. Contingent fees i.Advertising defined: public or private communication made by or behalf of lawyer about the lawyer or services. Endorsements from former clients iv. viii. ii.Exception: Communication to existing clients or other lawyers. the firm shall abide by the ad). And must contain the disclaimer: prior results do not guarantee a similar outcome. . You must make it clear what client will be responsible for and that contingency fees are not permitted in all types of cases. Ad may also contain: i. Domain names: you can use a domain name that d/n include the firm name ex. Telling clients about connections with agency administrators is improper. iii. You must clearly state terms and basis of the rate. 4. Public offices and teaching position held iv. 2. instant messaging. Compare lawyer s services iii. Telephone & radio ads must be kept for at least 3 years. Reasonable expectations about results ii. 3.com would do this). Computer accessed communication includes: any communication disseminated through computer or electronic device which includes:Websites. 7. Bona fide professional ratings.com. Educational background & degrees ii. Foreign language fluency. The label Attny advertising must appear on the first page of hard copy ads and website homepages. the primary purpose is to retain a client for the firm. Legal fees. telephone (may include domain name or motto that does not violate the RPC) ii. 5. and it does not imply a result (winner. if true and not misleading: i. address. What is misleading?promised outcomes and ability to achieve results from improper influence / clout. Assuming the ad is otherwise in accord with the RPC and is factually supported by the firm on the date of publication. 1. Accepting fees by credit card vii. iii.

these are too impersonal) UNLESS the recipient is: i. NY lawyer may not solicit someone by written or recorded communication if: y false. lawyer pays guy to give cards at scene of accident. Rule: lawyers may NOT solicit for pecuniary gain by in-person or telephone contact. Lawyer wants to mail letter to victims advertising services. Ex. 5. pop-ads or email. do not accept employment resulting from such advice: . partner A tries to get now clients for partner B. These rule apply to non-NY lawyers.D. real-time or interactive computer access communications (includes chat rooms. Targeted mail: 1. misleading or defective y the client has asked not to be solicited y solicitation involves coercion. In-person. 4. Disclose how lawyer obtained identity of recipient. you may send mail to groups of people like in need of services (ex. everyone arrested fro DUI last week) 2. Wait until 30 days after the crash iii. the words attorney advertising must go in subject line (this however puts the email in spam) 3. copy of letter filed w/ grievance committee. What s required? i. harassment. ii. Ex. Solicitations direct to predetermined recipients MUST how lawyer learned of recipient identity. 1. No solicitation for personal injury or wrongful death matters by lawyer before the 30th day of the incident. Existing client 2. instant messaging. A lawyer cannot assist another lawyer in violating solicitation rules. they re in the hospital y Sent to a place someone other than the business address. if self-mailing brochure . 3. Lawyer may not violate rules through the acts of a non-lawyer: ex. 6. on plane crashing in Hudson. Exception: no solicitation if clients says stop. unless a filing is rqed in less than 30 days. the words do not sign must appear on client signature line. E. unsolicited advice. 4. Relative iii. y It will emotionally injure the person ex. Soliciting clients: all solicitationsare advertisements and are subject to advertising rules. but does not include websites. if retainer agmt in solicitation. in which case no unsolicited communication is allowed until the 15th day after the incident. Close friend ii. Former client iv. duress.

you tell judge. law or ct order 2.you cannot rep victim ex. B. 6. lawyer must disclose perjury to tribunal.**this is must reveal. client tells you about past crime. client tells you she is planning to kidnap someone. You must safeguard the property. Ex. What to do? i. To obtain legal or ethical advice via use of hypos 3. Lawyers may not be stmts that a reasonable person would know would be prejudicial to the case. 4. Maintain Confidences of clients 1. The lawyer-client relationship A. 4. If you terminate the ACR. 5. even if it requires revealing confidential info. To protect third parties. To prevent client from committing a crime or to prevent reasonably certain death or substantial bodily harm. What can you do? You mayreveal the intention of your client to commit murder or substantial bodily injury.where the bodies were buried. Ex. You can go to the police to prevent a crime. you cannot use client s property for personal use.all permissible.y y ex. Wow. Judge order you turn over work product: you may but not required. ii. IV. C. Ex. Give client reasonable notice. you see guy hit and run up and say you have a great case. he told he was at the scene of the crime. ex. ii. not mandatory: 1. no. Return unused portion of the retainer. Your client lies on stand and you know it. 2. 6. Broader than the attny-client privilege which are confidential and are for legal advice. do not prejudice the client: i. victim comes up to you and says do you think I have a case: yes you can represent. If he refuses. D. Exceptions to confidentiality. client tells you about elaborate murder scheme. 5. Ex. Anything derogatory. such as children from serious risk of harm. embarrassing or hurtful regarding your client. What can you do? Nothing. i. Return the whole file and iii. To rectify fraud on a tribunal committed by lawyers owner client. You have client s car due to your representing them in a divorce case. Safeguard client property 1. Disclosure authorized to advance best interest of client. Direct client to correct testimony. no matter what the source. ex. ii. Rqed by rules. 3. . Trial Publicity 1.

. Murder stmt is allowed. Ex. Lawyer may state: i. 2. witnessing a signature on a will. an uncontested fact that D ran the red light. Defense attny on character is allowed to mitigate the DA s stmt. 20 Hall approaches lawyer who has represented oates on separate small matters. Accept a case w/ a conflict only if you have clients informed consent. Conflicts of Interest Rule: lawyer must avoid conflicts and exercise independent professional jdgmt. Conflict ripe for testing General rules 1.i. 3. oates if oates is a currently client. ex. Steps you must take: 1. Lawyer probably can t represent hall v. A matter of formality. Disclosure. That defendant is charged. the other party s lawyer can make stmt to mitigate effect of improper stmt. reputation or criminal record of party ii. 2. unless to say that they are presumed innocent 2. Defense responds: he is innocent until proven guilty and is an upstanding guy. Laywers do not testify on behalf of clients. in criminal case: info necessary to aid in apprehension of accuses iv. 1. Obtain consent in writing. Person is of public interest and there is reason to believe they may cause harm iii. Ensure representation is not prohibited by law. Right of reply: if one lawyer crosses the line. pp. Dry facts ii. Possibility or existence of a conviction and opinion as to guilt or innocent iv. Ex. DA tells press D is most likely guilty and will probably plead so this week. Ex. UNLESS: 1. Character. V. v. After these steps: you must still decide if you can provide competent and diligent representation. Cannot use Oates s confidential info in representing hall. Inadmissible evidence v. Explain conflict and risk to client. In an uncontested matter. Nature and value of legal services 3. Need informed consent and ALL WAIVERS must be confirmed in WRITING. Identification of witness or expected testimony iii. Lawyer s cannot represent adverse interests of client unless lawyer fully explains risks and alternative. but opinion on guilt & plea stmt are not allowed.

Contrast: you represent a car dealer. . No rule of imputation. Is this permissible? No. (preexisting sex is ok). an attny shall NOT foreclosure on a mortgage placed on a marital residence remains the title owner. In such cases: y client should be full informed of the terms of transaction in writing. y You must take direction from client. and it is the primary residence. Exception: a. a lawyer cannot take a mortgage on a client s property to secure a fee. Interest in publication rights are prohibited. homer and marge are getting a divorce. 3. Homer s mother is paying. Fee payment by third party: ex. Ex. Court approves SI. and meets other rqmts above. c. Retainer provides security interest (SI) can be sought.2. your client asks you for money for their infant.no partners will not be affected. lawyer and client want to start restaurant. she instructs you to make sure marge gets nothing. even though mother is paying the bill. you offer to take Charlie sheen s case for free in exchange for half of publication rights. y client should be advised in writing to review transaction w/ independent lawyer. Generally. 4. But. d. Lending money to clients: ex. 7. same as above. Ex. Notice of application to SI is given to other spouse. 5. Lawyers cannot demand sexual relations as a condition of representation. unless notice of the SI was given to tony. Buying a car from them is not doing business b/c the deal is not relying on lawyer s advice. Rule: a lawyer cannot even negotiate a media-rights agmt until all legal matters are concluded. You cannot start a sexual relations matter during representation. Is the pship agmt binding? Yes if terms are fair and reasonable to client. y NY allows you to pay court costs and expenses of litigation for indigents and pro bono clients. Person who communicates w/ lawyer for person of disqualifying an opposing party from having a lawyer will not get the benefits of a prospective client. b. except for: court costs and expenses of litigation. No: a lawyer cannot advance any financial assistance to a client in litigation. Ex. Ex. Doing business w/ clients generally prohibited unless the transaction is fair and reasonable to the client. Homer tells you he d/n want a divorce. 6. No. Carmela soprano seeks divorce and in retainer she signs for lawyer to take a SI in any real property. lawyer requires 35% of profits from any media/literary proceeds relating to the incident.

keep reasonable. Lawyer has discretion. lawyer may consent new client against former client. Representing a corporation or pship.yours and your clients Rule: explain fees. Handling money. VI. Duty to report securities violation up the chain of command to CLO. Note: there is a cap on lawyers fees in Personal Injury cases and wrongful death. You must tell ceo. and risk of revealing confidential info to persons outside the org. Lawyer should try to minimize disruptions to corp. you represent thecorp and not him individually. if ceo d/n correct problem. y You can never represent a current client against a current client. y Exception: lawyer can enter into a minimum fee agmt once she sets forth how fee will be incurred and calculated. 10. y Ex. A client can ratify so long as: Client has a full understanding of facts and has knowledge of their rights as a client. That is always a conflict and even consent will not cure the conflict. Ratifying a fee agmt: 1. but the lawyer has represented Tony s sanitation company on a parking ticket in the past. Representing the insured: lawyer represents the insured. 5. You may reveal confidential into to extent necessary to protect client (corporation). you represent the entity. B. cannot set min or max fee schedule. If not appropriate response from higher ups. 2. Can the lawyer take the case? yes. Duty to protect the best interests of the org and report violation to a higher authority w/in org. A client may ratify an attny s fee agmt during: a period of continuous representation. as long as tony is no longer a client. you know about the client s financial information which may apply to a lot of future cases Note: if the info is no longer confidential or if the client consents. 4. 2. You keep insured info confidential and you send out a letter of engagement. even if attny misconduct occurs during the period.8. 3. so long as the ratifying is not a result of misconduct. 1. Lawsuits between current and former clients: You may represent a current client in an action against former client except: y when you have confidential info which is now relevant OR y ex. not the insurance company paying the bills. Carmella finally finds a lawyer that tony hasn t already talked to about the case. y Ex. .go to the board of directors. you report up the chain of command. ceo of ford tells you keep something confidential.

c/n use contingency fee to collect unpaid alimony or child support. you don t have to do this b/c their not accustomed to it. Note: medical malpractice is quasi crim.C.all aspects of divorce 1. b. fee amt must be in writing signed by client and laywer 2. 3. Periodic billing must be sent out every 60 days and at conclusion of case. y After representation is over. If fees are projected to be $3000 or more. fee agmt must be in writing. 5. must still orally communicate the scope of the rep. lawyer must give prospective client a stmt of their rights and responsibility at the initial conference and prior to signing retainer. and is admitted in another jx. or c. lawyer must provide a closing statement. Different in ABA. which in NY includes past due alimony and child supportor other proceedings to enforce divorce jdgmts. You cannot charge a contingent fee if you represent the doctor. if a domestic relations matter. a more specific letter is required note: in a & c above. You cannot charge a contingent fee in a criminal matter. y No contingency in domestic relations matters. D. stating the outcome of the matter and computing the fee. 4. However if this is old client. F. Domestic Relations matters Very broad definition. It must be filed with the appellate division. no material portion of services are performed in NY d. Written letter of engagement. attny must send back any unused portion of retainer. . E. 6. Fee disputes should be resolved by arbitration at the election of the client. scope of legal services provided 2. No non-refundable fees in DR matters (or any other matter). Relationship with non-lawyer: lawyer cannot be partner with a non-lawyer if any part of the partnership involved the practice of law. explanation of attny s fees to be charged 3. notice of client s right to arbitrate a fee dispute Exceptions: not subject to this rule (no letter required) if: a. Be aware of when you cannot charge contingent fees. services are of the same general kind as previously rendered to and paid for by the client. Retainer agmt or letter of engagement must include: 1. Attny has no office in NY. expenses and billing practices 4. and the basis of the fee.

you need client consent to the hiring of the lawyer and division of the fee 2. Retainer. goes into business w/ another broker. but in order to split fees: 1. Operating account: this is the firm s account 2. dishonored check reporting: client funds must be placed at a bank that will provide this when check bounces y A copy of this report is mailed to the lawyer and after 10 days. Can bill split real estate fees? Yes under facts he can split brokerage fees b/c he s not practicing law. but bank fees must be covered by lawyer s money. profit sharing b. Never divide a legal fee w/ a non-lawyer. d. total fees must be reasonable 3. division must be in proportion to the serviced performed or 4. so long as the physical space is separated. For small sums accumulating interest. H. Can you brink in that expert?yes. Put money in proper accounts: 1. Two typesof accounts that every lawyer must have: 1. bonuses.1. G. salaries. retirement plans. General rules of client trust accounts: don t mix up your client trust account with your operating accounts: a. the report is sent to the disciplinary commission to take action. Hypo: Bill. each lawyer must assign joint responsibility for representation in a writing with a client. funds to maintain the account are the only lawyer funds that can be put in the client trust account c. y Non-lawyer s clients cannot be coerced into using lawyer s services. spouses of deceased partners to pay fees earned by deceased partner. a lawyer who is also a real estate broker. 2 types 1. Exceptions (can share these types of fees): a. A lawyer cannot go and deposit additional funds from your own account. But an attny and non-attny can share office space.goes into their account) I. 2. Client trust: only client s money goes here. Advance on fees(belongs) to client (goes into trust account) 2. interest is swept out and sent to NY IOLA fund (the interest on lawyer s account fund). J. must be aNY bank b. Common client trust account problems . Referral fees are prohibited Hypo: You need a bankruptcy expert to help you with an aspect of your PI case. Availability or general retainer (belongs to attny.

the clients says I think you only deserve 3k of the 10k. criminal matters b. In NY in a civil matter. Conducting litigation fairly 1.Hypo: lawyer short on money. Case settles for 30k. done w/in a reasonable time after sending the bill. Hypo: Lawyer short on money. even if he pays the money back. There is a law that will allow him to sue for wrongful termination. B. transfer 3k to operating account. Not even to tell them where the bathroom is. Subordinate lawyer: must follow rules even if acting at another s direction y No violation if on an arguable question of ethics. Ex Parte Communications during trial a. Gets a retainer for 100k and starts working on case. K. .How far does it extend? 1. Bills 2k the first week and transfers money from client trust to operating account. Problem?yes this is conversion. borrow $100 from client trust account. Hypo: lawyers has 1/3 contingency agmt. supervising lawyer/partner: must abide by these rules and ensure that all lawyers and non-lawyers acting at their direction conform to the rules. 2. Hypo: Supervisor tells subordinate to sign the client s name and notarize the affidavit himself. dispute involves malpractice. you can go to court c. Problem? No. if less than $1000 Or greater than $50k. (lawyercan t just go to court) y client must be told about this option in the letter of engagement. y Managing lawyer (supervisor) can be held responsible for conduct of subordinates if they knew of the wrongful conduct and did not report it. lawyer puts it in the client trust account. or if they told the subordinate to perform the act. What should sub do? Refuse to sign the affidavit and report the rule violation. Super says him and the client are great friends. 7k remains in client trust account until dispute is resolved. Fee dispute Resolution Program 1. Exceptions to this mandatory program: a. Being professionally responsible. notifies client. check arrives. With juror y Lawyer cannot speak to a jury for any reason. writes a promissory which pay 3x going interest rate. fee disputes between Lawyer and Client are subject to arbitration at the client s option. VII. What to do?pay client 20k. if amt in dispute. Before lawyer takes out his 10k.

Hypo: You know of a case that is directly on point for opposing counsel. juror d/n want to talk 3. d.After trial. y contribution to a judges campaign is ok (even if you appear regularly b/f the judge). c. no. 2. It s a public record. purpose is to harass juror b. With witnesses: generally no limitations. no. A lawyer must uphold the integrity of the profession and should not make unfair or derogatory remarks about other lawyers and or makes gifts to judges. In an ExParte proceeding: y lawyer must disclose all facts (even those adverse to your client) so the tribunal can make an informed decision. contribute financially to organizations that provide such services E. What do you do? disclose the on-point but probably try to distinguish your case from it. strongly encouraged and should provide 20 hours of pro se representation per year. the judge d/n raise the case. He can talk to the witness though. prohibited by court order 2. and then tells judge of settlement. opposing counsel argues and fails to rasie the case. which means:case law or statues. Voluntary pro bono service 1. 2. lawyer Macgyver speaks to juror. Adverse authority Lawyer has affirmative duty to disclose contrary or adverse authority. Must disclose(in a timely manner) evidence tending to negate the guilt of the excused or reduce the punishment. C. Every attny shall file a registration stmt every year when duly admitted to the NY bar. With adversarial party: no communications with represented party. speaks to the defendant and puts together a settlement in the hallway. y Ex. Special duties of prosecutor 1. No. D. 3. it s ok unless: 1. With judge: you c/n communicate w/ judge other than customary communication or in a settlement conference. 2.you must obtain corporate counsel s permission to speak with them. During trial. Proceed only on probable cause. Exception: if W is a high-level corporate officer or corporate employee. directly adverse to client s positionbut the duty does not extend to facts or witnesses adverse to client s position. . F.

add the following rule segment after you have framed the issue. .On NY essays. Criminal: a lawyer must represent his client s zealously w/in the bound s of the law but may defend the proceeding so as to require every element of crime to be established. y y Civil: a lawyer must represent his client zealously w/in the bounds of the law and make only meritoriously claims and contentions. if you see a lawyer/conflict problem.

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