Rules Governing the Utah State Bar – Comment Period Closes May 14, 2021

USB14-0802. Authorization to practice law. Amend. Proposed changes allow an LPP to sit at the counsel table with a client to advise and confer and to answer questions from the court.

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25 thoughts on “Rules Governing the Utah State Bar – Comment Period Closes May 14, 2021
  1. Jeff Rifleman

    This amendment should be stricken. The purpose of the LLP is not to be a legal representative before the court. The rules allow the LLP to aid in the drafting of documents and to appear in a confidential mediation – but not to practice law before the court. This amendment would drastically change the nature of the LLP’s role and enter into the realm of litigation – which the LLP is not trained to do. This is a justification of the concerns held by many attorneys that the LLP program was not what has been presented and this latest proposed amendment is ‘the camel’s nose in the tent’. The LLP should not be allowed to give legat advise at the counsel table.

     
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    1. Francisco E

      Just so you know, the medical profession is fighting an identical fight on all fronts – its doctors vs private equity/ corporate executives, who want to replace physicians everywhere with NPs and PAs of less training. The NPs themselves aren’t the enemy, their professional association, the AANP, is the enemy. The way that is best for patients is PAs and NPs receiving supervision until such point as the physician determines the supervision can be loosened – but the way legislators and CEOs see it is – fire the physicians, the potential lawsuits from NP malpractice are peanuts compared to the potential profits from firing all the physicians. Would you like a copilot to independently determine that he is competent to fly an A340 jet on his own terms? I think you would want the captain to make that determination. Ultimately we all lose if NPs get independent practice everywhere, as we will all become patients one day. Come fight this fight with us – and read Patients at Risk, by Niran al-Agba, to see the details (note I gain no royalty from sharing this book).

       
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  2. Tom

    This is insane. The rules allowing non-lawyers to practice law render the 3 years of law school, the untold hours of trial practice, the bar exam and the studying for the bar exam, and the years of practice to become a licensed lawyer meaningless. Contrary to the opinion of the elite in the bar, there is not a shortage of lawyers in Utah. There’s only an unwillingness among a populace that has been exposed to discounts in most consumer activities to expect a discount on legal services. The opportunity cost of law school and the early years of practice drive the rates of lawyers but don’t be misled, there is always a lawyer that is willing to undercut another’s fee. Allowing non-lawyers to practice law won’t provide access to justice, it will merely put a veneer on the process where litigants who have been misled to think that a paralegal is a cheaper alternative to a lawyer are put into the cross-hairs of a litigant represented by a lawyer.

     
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  3. Brooke

    I support the LPP program and think it’s help create some good changes. However, the more rules we change- I’m seeing the lines blur between LPPs and attorneys. I don’t want to see a law degree become watered down. It almost seems easier to get an LPP, save all the money and time for law school, and still accomplish a large amount of the same tasks. Will LPPs be required to be certified in court preparation classes, trial advocacy, rules of evidence, etc.? Many attorneys don’t even appear in court regularly. This seems to be a big jump. I’d love to learn what specific requirements LPPs need to accomplish before they can sit at counsel table.

     
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  4. jonathan p smith

    Who is proposing this and why do they want to do away with attorneys?

    They said don’t worry, lpp will only help with limited paperwork and won’t go to court.

     
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  5. W. Andrew McCullough

    I think sitting at counsel table and advising a client goes beyond the line of what is practicing law; and I oppose it. I realize there is little chance anyone cares what I think; but I have practiced law for 48 years, and I decided to say it anyway. thanks.

     
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  6. Floyd

    So now we are allowing LPP’s to be pseudo attorneys practicing before the Court? Such a change will enable them to basically advise clients on the law if they are allowed to “sit at the counsel table with a client” and “ADVISE and CONFER [i.e. per the dictionary: to recommend and offer suggestions about the best course of action; to have discussions; exchange opinions] and to ANSWER questions from the court.” Why do we stop at this, why not allow them to argue before the court? Or maybe this new addition (i.e. “answer questions from the court”) is intended for such to occur.

    So what is the point of going to law school anymore, if you want to practice law in the areas that LLPs can do work in? The boundaries for nonlawyers are being pushed too far.

     
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  7. Steve Nemelka

    Totally agree with the comments above (except the one supporting this ridiculous rule and stating attorneys don’t go to court much anyway). By definition this rule allows the unauthorized practice of law. The behind the curtain assistance and help at mediation is something much different than actually appearing before the court, making representations to the court and being competent. Practicing law is something attorneys do and something we attorneys spent a great deal of time and money trying to earn.

    Please reimburse my law school loans along with paying fair compensation for the countless hours we will all spend dealing with these folks in court. God help the Commissioners and Judges as well. Or maybe another solution is to let LLPs take the bench a few times a week as well. Your goal to delegitimize our profession is almost complete…thank you. I’m going to start doing brain surgeries.

     
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  8. AB

    This is a dangerous proposition, especially for communities who won’t understand the difference between an LLP and an attorney. Attorneys spend years in school to have the knowledge base to appropriately advise clients. Allowing a paralegal to “advise and confer” will certainly mislead vulnerable clients into thinking they are represented by an attorney. I’ve already seen that happen in court, where a client said “my attorney advised me…” and proceeded to explain how a paralegal had instructed her to ignore a court order, and we ended up in a contempt proceeding. It damages the credibility of attorneys and harms unknowing clients.

    It unnecessarily crosses the boundary line into unauthorized practice of law.
    At that point: what separates an attorney from an LLP? The distinction to an uniformed client would be non-existent, when in reality, the difference is 7.5 years of education, the bar exam, and years of training.

     
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  9. Nic Mills

    I write to oppose this amendment. While I believe it has been inspired by noble goals, it is ultimately short-sighted and ill-advised. I will outline three of the many reasons I oppose the rule.

    First, the quintessential and, arguably, most difficult aspect of practicing law is sitting at counsel table advising a client during a hearing. This is not to diminish the difficulties or importance of transactional work, research, or pre- and post-trial work. But the difficulties of providing impromptu legal advice during court are significant. LPPs abbreviated educational requirements (while admirable) are insufficient to prepare them to provide adequate representation to the LPPs clients. I believe that clients who have retained an LPP under this amendment may easily misapprehend the abilities and qualifications that they are being offered.

    Second, I am concerned that this amendment encourages a “assembly line” approach to the practice of law instead of a “craftsman” approach to the law. I am concerned that well-intentioned, but misguided, websites have already depicted complex legal issues as simplistic “fill-in-the form” type of problems. In reality, the law is an incredibly complex and nuanced profession. This amendment further entrenches the growing view that many legal issues can be easily pushed through the “mill” and lawyers have been gouging people for years. In reality, finding a specialist in any field of law increases the chances of finding just and timely resolutions.

    Finally, this amendment seems hasty. According to the Court’s website, this program was conceived in May of 2015. One of the great benefits of the law is that decisions are made deliberately and based on experience. This amendment seems rushed to address problems without understanding if these actions will provide answers. Recently, the court adopted the “regulatory sandbox.” It seems prudent to determine if that will have the desired results before advancing other ideas. I say this because of the complexities and long-term effects that legal mistakes can cause. While some potential solutions need to be rushed into effect as soon as possible; its important to remember that occasionally noble people create Edsels and geniuses design DeLoreans. In other words, patience can be a virtue and not acting can limit the damage more than action can at times.

    Thanks for your consideration.

     
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  10. Donna

    Instead of using LPPs, why not do away with the Bar Exam, and have JDs represent people with supervision from seasoned lawyers for 6 months after they finish law school (about the same time that is now spent studying for and taking the exam and then waiting for results)? Or this could be an optional alternative route to licensure. This way the arcane Bar Exam is eliminated, poor people get some free or cheap help, new lawyers get some practical experience, and LPPs will not be advising people when they have less education than new lawyers. Nominal fees could be charged to the client, and the JD could pay the $500 or so to be supervised instead of paying for the exam.

     
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  11. Ryan Cottrell

    This is a terrible idea.

    How much will people have to spend on lawyers after paralegals mess something up?

     
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  12. Anna E. Carpenter

    I strongly support this rule change. Reams of research from the US, the UK, and other countries show that people with law training short of a JD and bar passage can provide effective legal services, including in-court services, for clients.

    In addition, it is a bit absurd to object to LPPs answering questions from a judge while LPPs are already authorized to provide legal advice and services. The in-court setting is public, lawyers (including the judge) are present, and there is often a record of proceedings. The in-court setting has always struck me as the place where we should worry least about paraprofessional services, given the opportunities for “seeing” problems that might arise.

     
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    1. LL

      “The in-court setting has always struck me as the place where we should worry least about paraprofessional services, given the opportunities for “seeing” problems that might arise .”

      The in-court setting is where many attorneys ‘hone’ their craft. This skill is not to be taken lightly. Every appearance is critical to a client’s case. I have seen many cases go out of control after the first in-court appearance due to novice, but well-intentioned, attorneys. Many attorneys from larger firms spend years as second chair, or assisting in the courtroom before having the opportunity to speak to the court in the in-court setting. This allows the second chair/assistant to participate as an aid to the seasoned attorney and learn the skill while under tutelage. Smaller firm attorneys have the daunting task to get up to speed when required to be in court, even with law school training in trial/courtroom litigation practice. This skill requires more than an education in ‘transactional’ law processes (ie interviewing and document preparation.) In-court presentation often requires forethought, quick thinkings, and strategy as interrelated issues that a trained LLP may not be proficient and unable to appropriately advise a client and or/represent legal theory/agrument/position to the court. (ie issues in divorce related to real estate, contracts, investment issues (401k divisions), etc.)

      I foresee the future where the LLP will be charging as much as an attorney ($175 plus/hour) – and will not accomplish what was set out by this initiative- and will not provide a client the comprehensive service a trained attroney can provide from formal training.

      The real solution is to educate potential litigants of the costs (money, time and emotion) incurred in the litigation process and encourage alternative dispute resolution. From court perspective, the court may increase the number of commissioners. It may increase the use of video-hearings. It may expand the court hours. It may expand the number of judges and perhaps make ‘courts’ that cater to these essential areas.. (ie family court, collections, landlord tenant) that only hear these issues.

      My $.02

      From the Utah Bar website:

      “What LPPs can do
      … LPPs can file court documents and serve as mediators, but they are prohibited from appearing in court, according to the Utah State Bar. An LPP can file forms, complete settlement negotiations, review court documents, and represent clients in mediation.”

       
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    2. T Wright

      Thank you for your comment. As a practicing LPP, I agree with you. Rule 14-802(c)(1) authorizes LPPs to practice law, in other areas other than just helping with and filing forms.

      In addition to the forms-related representation, LPPs are authorized to interview clients to understand the client’s objectives and obtain facts relevant to achieving that objective; review documents of another party and explain them; inform, counsel, assist and advocate for a client in mediated negotiations; and explain a court order that affects the client’s rights and obligations.

      Indeed, when the LPP client goes to court, if they do not hire an attorney for a one-time hearing/appearance, they are going it alone. An LPP still has to prepare them for that hearing, where they will self-represent. It makes sense that LPPs should be able to be present to answer questions and assist. This Rule proposal does not allow the LPP to orally advocate for the client. It allows the LPP to sit next to the client to assist the client with the self-representation and to answer any questions the Court may have that the client is unable to answer on their own.

      Would lawyers rather a competent, experienced LPP be present to help answer questions? Or would they rather a pro se litigant be on the other side of their cases? Because the people who are hiring LPPs are not hiring attorneys. These clients would be going it alone if not for the LPP.

      I hesitate to jump into defense mode here, but I would like to take this opportunity point out a few things.

      It is continually interesting to me that some lawyers who trust their experienced paralegal staff to assist them with the practice of law, to assist them with high-level, complex legal issues and substantive legal work, and trust the paralegal to do that with competency and professionalism, suddenly don’t trust those same experienced paralegals to assist the public with competency and professionalism in this capacity.

      You cannot be an LPP with a six-month certificate as another comment suggests. Rule 15-703 outlines all of the qualifications for LPPs and they are extensive. In addition to the education requirements, there are experience-related qualifications. If you feel like inexperienced paralegals are going to infiltrate the program, I would encourage you to read the Rule.

      If an LPP applicant is applying under Rule 15-705, there is a requirement of seven years of full-time substantive law-related experience as a Paralegal within the ten years preceding the application. In my own case, with ten+ years experience as a paralegal, and having worked as an in-court clerk before that, I don’t think anyone can simply apply and make it through the LPP licensure process without extensive experience. I also understand how to handle court proceedings. I have been to trial many times, assisting and observing lawyers with that important work. I am sure I am not alone in this, as the LPPs who have obtained licensure so far are highly experienced paralegals, have been paralegals for many years, and have enough expertise to have trained newly licensed attorneys on multiple occasions in their respective firms.

      The program is not easy to get in to, and it is not available to anyone who would like to just sort of sign on the line. Applications for LPP licensure are diligently screened by the committee, and there is a similar application process that is used for attorneys applying for the bar exam employed here: FBI background check, credit check, character and fitness tests, disclosing everything, specific courses through UVU (in addition to – not in lieu of – all of the other requirements), and successful completion of the Bar’s LPP exams, which are extensive.

      I think allowing an LPP to sit next to a client to assist in proceedings, to answer questions of the client and/or the Court, makes sense and would benefit all involved. Hearings would likely proceed in a more orderly fashion than if the pro se party were to go it alone. The Rule is proposed in the spirit of the original intention of the LPP program: to assist a very large percentage of the public who are in the stuck in the gap when it comes to access to justice.

       
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  13. JM

    This misguided attempt to provide access to justice will only exacerbate the problems it attempts to fix. It will harm litigants of modest means. There is an immense likelihood that LLPs will hold themselves out as “basically as good as a lawyer–but cheaper!” Persons of modest means will take the bait, and then find themselves represented by someone who 1) doesn’t understand the rules of evidence and procedure, 2) can’t correctly interpret court orders or adequately address court questions, and 3) doesn’t carry malpractice insurance.

    The litigant (who, remember, didn’t have enough money to hire a lawyer in the first place) is now poorer, and in a worse position in the litigation than they otherwise would have been. What are the rules when the paralegal wants to withdraw? What is the standard for malpractice?

    But, what I find most egregious is that the entire LLP program targets areas of law that hurt the working poor: family law, custody, debt collection, landlord-tenant. The landlords will continue to hire actual lawyers. So will the collections agencies. In family law, it will be the economically disadvantaged that will end up with this “sort of but not really a lawyer” representation.

    This will put courts in the position of either having to create different standards/procedures for parties based on their level of representation (Unethical? Sure. Unconstitutional? Probably.) Or acting as an investigator rather than an arbitrator to see justice done.

    If we care about justice, we should oppose this amendment. There are many other ways to address the real issue of access to legal representation. But this isn’t it.

     
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  14. AB

    Consider the OCAP DIY divorces. I have had clients who spent thousands more undoing something they didn’t understand than they would have in hiring an attorney in the first place. I believe this rule change will result in the same waste of time and money.

    I’m also discouraged by the bait and switch. We were told LPPs would have limited abilities. Why is the Bar undermining the attorneys it is supposed to protect? Especially the small firms or solo practitioners that provide affordable legal services.

    It’s insulting that the years of education and training we’ve gone through is so easily replaced by a 6 month certificate.

     
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  15. Peter Vanderhooft

    I am an LPP and I support the amendment. I am not interested in practicing law before a judge and was glad that the program did specifically said that LPPs were not allowed to represent clients in court. That being said, I do see value in an LPP being able to sit with a client and provide advice to the client on how to best represent themselves.

    One of my clients had a number of attorneys represent her who drafted documents that border on useless and left me in the position of having to reopen discovery so I could figure out what had been done in the case and fill in the gaps. I mostly target clients that are lower-income or in the recovery community and it has been my experience that these clients cannot afford a standard attorney rate and even when they do, they receive lackluster representation, possibly due to the perception that they are judgment proof and not worth the attorney’s time to represent.

    This amendment is important because as the client’s LPP, I need to know what happens in Court so that I can utilize that information going forward and draft an order on the hearing. Additionally, I appreciate the opportunity to be able to help my client best represent themselves in Court since it is very easy to let emotions get in the way of the requirements of law.

     
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  16. Rheane

    I support this rule change. LPP’s are already meeting with and advising clients on legal issues, and they are already answering questions from the court through their clients. This rule is simply streamlining a process that is already, on a basic level, in effect. Many of the comments here suggest that the comment authors are interpreting the rule amendment to allow an LPP to argue a case in court. This is not what the amendment proposes; it proposes that the LPP can sit next to the client, be available for advice, and to answer questions from their client or the court.

    LPP’s have a limited license to practice law in the State of Utah. The comments that suggest that the LPP profession should be stricken are not timely. The time to comment, or oppose the change to rule 14-802, which was amended to allow for LPP’s is over, and has been over for some time.

    The education and experience-related requirements for an LPP can be found in rule 15-703. I encourage anyone who is interested in those qualifications to review that rule. The list of qualifications is extensive. Based upon some of the comments here, it is apparent that some members of the Bar are misinformed regarding what an LPP can or can’t do, and are perhaps not familiar enough with the extensive qualifications to become an LPP, to acknowledge that LPPs are qualified to assist the public in this capacity.

    I encourage the committee to approve this rule amendment to allow an LPP to sit next to a client in court to advise, and to answer questions that the client (or the court) may have. This rule is simply furthering the average person’s fair and equal access to justice, which is a lofty goal that all members of the Bar should have.

     
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  17. John

    I agree with every comment that has been made against the proposed rule change. This is not a good idea and it flies directly against what was promised when the LPP program was presented.

    Please let’s remember that according to the research/reports that were used to support the “sandbox” and further “access to justice”, that 70% of pro se litigants were pro se by choice, not because they lacked the funds.

    There are very good modest means attorneys as well as very good pro bono resources if an individual can’t afford help at counsel table. The line between who and how a litigant can be represented should not be blurred.

    There is not a shortage of attorneys in Utah. I know many that have a very wide sliding scale for fees so as to help lower income individuals as well as help the attorney maintain a caseload.

    This change is simply not needed and does more harm overall.

     
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  18. Brent Salazar-Hall

    As an attorney, I am not opposed to the concept contained in the proposed rule. There are cases I have personally seen with pro se litigants where basic assistance in court would be helpful. Court can be intimidating for many litigants. Issues such as determining gross monthly income from pay-stubs or order language review can be greatly assisted by an LPP.
    However, I am opposed to this rule as written due to the unintended consequences I anticipate it will create for courts, attorneys, LPPs, and parties as follows:

    First. Concern for blurred role with court.
    The rule as written authorizes LPPs to “answer questions from the court.” I am concerned with the practical limits of this role. If the intent was for LPPs to assist a party with addressing a financial document, date of service, or completeness of necessary documents (divorce education, military service affidavit, or related documents) the rule makes sense. However, if a court’s questions pertain to legal positions, approval of proposed stipulation terms, waivers of rights (such as approval of a 4-904 trial), proffers of party’s statements, conceding legal points, or evidentiary objections (or lack thereof), I have grave concerns. The answers to those questions can have extreme and permanent effects on a party’s case. The answering of such questions on behalf of a client is the essence of legal representation. It is not always easy to tell a judicial officer in open court “that’s not my role” or that you were not prepared to answer those questions. It is also difficult to answer those questions without experience representing clients through all stages of case. It may also confuse clients as to what scope their LPP can assist with in court. A client may have been told that the LPP can take care of any court questions, which is not necessarily accurate. I believe these issues may place LPPs in an unfair position where a court may treat the LPP the same as counsel, holding them to the same standards to object to evidence or argue law and the waivers that occur if such objections are not properly made. The rule does not provide a bright line clearly delineating the boundary. Without clear direction, their is also little guidance for courts to determine what questions they may ask of an LPP. Some judicial officers may interpret this to mean all questions, and others may be more selective. The standards between courts may not be consistent, further confusing counsel, parties, and LPPs.

    Second: Concern for blurred role in advocacy with counsel.
    The rule as written authorizes “sitting with the client at the counsel table during a proceeding to advise and confer with the client.” While section (H) of the current rule allows for “advocating for a client in mediated negotiations,” I notice that the proposed amendments do not authorize the LPP to negotiate with counsel outside of mediation. This will lead to confusion. Nearly every judicial officer requests (and sometimes requires) counsel to attempt to resolve the matter at court prior to the hearing. Many issues are often resolved in the conference rooms or hallways outside of the courtroom. An LPP is not allowed to represent their client in these matters. In practice, this will lead to much confusion. Imagine hiring an LPP to come to court with you. You appear and then find out you must negotiate with opposing counsel alone. You must then convey the deal to your hired LPP for advice, but return alone to opposing counsel for further negotiations. It’s a game of legal telephone. I also do not believe all counsel will include the LPP in their negotiations, or allow them to negotiate on the party’s behalf. In fact, I foresee many attorneys refusing to do so, as it is folly to negotiate with a representative that has no authority to represent their client in negotiations. Please note that I am not recommending to extend the rule to allow for negotiations with counsel outside of mediation. That is again the crux of legal representation as mentioned above for all of the same dangers. Mediation has built-in confidentiality measures to protect clients and LPPs. This is also an extremely needed necessity, as currently there is no LPP-client privilege or confidentiality. There is nothing to currently prevent an LPP from being deposed or subpoenaed regarding their advice and communications with their client (outside of mediation). Utah’s rules and litigation system are clearly designed with understanding of “counsel” in mind. LPPs being involved in advocacy blurs the lines. For example, are LPPs personally liable under Rule 11 sanctions? Can they sign discovery responses for clients? Can an LPP issue a subpoena to a third party? Are they sanction-able if the subpoenas are abused? While this Rule amendment admittedly does not specifically address these issues, it does add to blur a clear bright line between pleading assistance and advocacy.

    Third: Concern for blurred line in expectations with public.
    The greatest concern in our profession should be for the public we serve. I agree with our Judiciary that access to justice is a most pressing concern. It is difficult for many to afford the services of a lawyer. It’s my understanding that the LPP program was in part a program to alleviate this concern. However, greater access to justice should not come at the expense of due process or public misunderstanding. I would argue that while being unable to afford a lawyer less than ideal, actually paying for an LPP that cannot do what you thought they could do is even worse, and may diminish the public’s trust in the entire judiciary and legal system. Confusion is a critical issue. Bright line rules avoid confusion for the court, the LPPs, the attorneys, and the public. This proposed rule disrupts the bright line. I cannot support it in its current form and must urge the committee not to approve.

     
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  19. Karla Block

    I submit this comment on behalf of the Family Law Executive Committee (FLEC) members. The FLEC opposes the proposed rule change as it is currently written. The proposed rule change goes too far when permitting the LPP to address the court by responding to questions and providing advice while sitting at the court’s table with a party. Over the limited time that the LPP program has existed the educational requirements have already been reduced and this causes additional concerns.

     
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