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Official Standards and Guidelines for the Utilization of Paralegals in Kansas
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Official Standards and Guidelines for
the Utilization of
Paralegals in Kansas

Prepared as a public service by the Kansas Bar Association.

Scope and purpose of standards guidelines

Attorneys have a moral and ethical duty to make legal services available to the public at affordable prices. In furtherance of this commitment, the services of paralegals are being utilized by attorneys. Except where prohibited by law or the Rules Relating to Discipline of Attorneys adopted by the Supreme Court of the State of Kansas, which supersede and govern these guidelines, an attorney may utilize the services of a paralegal to assist in the representation of a client as set forth in these guidelines.

 

Questions pertaining to the utilization of paralegals may be addressed to the KBA Paralegal Committee.

Instructions: click any of the labels below to expand/hide each topic.

Definition of "Paralegal”

The term "paralegal,” as used in these standards and guidelines, is defined by adoption of the American Bar Association (ABA) definition:

A […] paralegal is a person, qualified by education, training, or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.

See: http://www.americanbar.org/groups/paralegals.html

 

Any attorney employing a paralegal shall ascertain that such person is qualified to act in that capacity through formal education, special training, and experience.

Standards

Any attorney employing a paralegal should establish guidelines as to the expertise, educational background, and any other special requirements needed for the position. The following are recommendations to assist an attorney in determining an individual’s qualifications as a paralegal. Any one of the following standards may be used to determine an individual’s qualification to be employed as a paralegal.

STANDARD I

Completion of an educational program for paralegals which has been approved by the ABA or offered by an accredited institution which is in substantial compliance with ABA guidelines for the approval of paralegal programs.

Comment: Seeking approval of a paralegal education program from the ABA is a voluntary effort initiated by the institution offering the program. An accredited institution that does not offer an ABA approved program may still provide a good quality education.

STANDARD II

Completion of one of the nationally recognized examinations specially designed for paralegals.

Comment: The National Association of Legal Assistants (NALA) offers the Certified Paralegal Examination. If an individual successfully passes this examination he/she is entitled to use the designation "Certified Paralegal” (CP®) or "Certified Legal Assistant” (CLA®). After achieving the CP or CLA designation, an individual may obtain additional certification in a specific field of law by passing the Advanced Paralegal Examination. If an individual successfully passes this examination, he/she if entitled to use the designation "Advanced Certified Paralegal” (ACP®).


The National Federation of Paralegal Associations (NFPA) offers the Paralegal Advanced Competency Examination® (PACE). If an individual successfully passes this examination he/she is entitled to use the designation "PACE Registered Paralegal RP®” (RP). NFPA also offers the Paralegal Core Competency Exam™ (PCCE). If an individual successfully passes this examination, he/she is entitled to use the designation "CORE Registered Paralegal™” (CRP).

STANDARD III

Completion of either of the following:

  • A baccalaureate degree in any discipline from an accredited institution and not less than one year of in-house training as a paralegal; OR
  • An associate’s degree in any discipline from an accredited institution and not less than three years of in-house training as a paralegal.

Guidelines

GUIDELINE I

An attorney shall not permit a paralegal to give legal advice or to engage in the practice of law except as provided for herein.

Comment: The protection of the public from lack of expertise can be assured by attorneys not permitting laypersons to give legal advice. While a layperson may have some knowledge or expertise in an area, the learning alone does not justify the representation to the public that such person is qualified as an attorney. This guideline, therefore, provides that attorneys shall not allow a paralegal to give legal advice or otherwise engage in the practice of law. However, certain services may be performed by the paralegal for the attorney on behalf of the client. For the purpose of these guidelines, a paralegal is not practicing law if the paralegal is acting under the ultimate direction and supervision of an attorney when the paralegal is applying knowledge of law and legal procedures on behalf of the attorney.

GUIDELINE II

An attorney shall not permit a paralegal to represent a client before any court or administrative agency nor shall a paralegal sign any pleading, paper, or document filed on behalf of a client with any court or agency unless expressly permitted by statute or administrative regulation.

Comment: Generally, a paralegal cannot appear, plead, try cases, or argue in court on behalf of another person or do anything in a representative capacity for a client; only the attorney may perform these functions unless expressly permitted by statute, court rule, or administrative regulation. The provisions regarding the signing of documents or pleadings do not prohibit the paralegal from signing as a witness or notary public or in some other non-representative capacity. This guideline is directed solely to the signing of documents as a representative of the client.

GUIDELINE III

An attorney should exercise care to prevent a paralegal from engaging in conduct which would be in violation of the Kansas Rules of Professional Conduct (Rules).

Comment: It is the responsibility of the attorney/employer to instruct and supervise a paralegal so neither the attorney nor the paralegal will be in violation of the Rules and these guidelines. It is recommended that the Rules and these guidelines be delivered to and discussed with the paralegal immediately upon employment of the paralegal to avoid any unethical conduct.

See the "Attorney Checklist for Working With Paralegals” at the end of this publication.

GUIDELINE IV

Except as otherwise prohibited by statute, court rule or decision, administrative rule or regulation, or by the Rules or these guidelines, an attorney may permit a paralegal to perform services in representation of a client provided:

  • The client is fully informed and understands that the paralegal is not an attorney;
  • The attorney remains fully responsible for such representation, including all actions taken or not taken by the paralegal;
  • The attorney maintains a direct relationship with the client; and
  • The attorney supervises the work product and conduct of the paralegal.

Comment: The supervising attorney shall remain directly responsible for all actions taken or omitted to be taken by the paralegal, and shall be fully accountable to the appropriate professional disciplinary bodies for the work of the paralegal. It follows that where duties are delegated to a paralegal, the supervising attorney must be certain that the paralegal is given adequate guidance and assistance for the carrying out of the duties so delegated. It is the attorney who is ultimately accountable for the work of the paralegal on behalf of the client in accordance with the Rules.

GUIDELINE V

An attorney shall instruct the paralegal to preserve the confidences and secrets of a client.


Comment:The normal operation of a law office exposes paralegals to confidential information, and this obligates an attorney to exercise care in selecting and training paralegals so that the sanctity of all confidences and secrets of clients may be preserved.

GUIDELINE VI

An attorney shall not share fees with a paralegal.


Comment: This guideline is not intended to deny paralegals salaries, bonuses, or benefits, even though they may be tied to the profitability of the firm. It prohibits any form of compensation directly tied to the existence or amount of a particular legal fee. The paralegal should not be compensated for the recommendation of the attorney’s services or be deprived of compensation because of the lack of such referrals. This does not imply that the paralegal cannot make the services of the attorney known, so long as it does not violate the Rules or these guidelines.

GUIDELINE VII

An attorney shall not form a partnership with a paralegal if any of the activities of such partnership consist of the practice of law.


Comment: This rule does not prohibit an attorney from entering into a business association with a paralegal for purposes other than the practice of law.

GUIDELINE VIII

A paralegal may have business cards and may be included on the letterhead of an attorney or law firm if the paralegal’s non-attorney status is clearly indicated.


Comment: A paralegal may have business cards designed to identify the paralegal as such and state by whom the paralegal is employed. In December 1992, the KBA Professional Ethics Advisory Committee recommended allowing the name of a paralegal to be listed on the letterhead of an attorney or law firm if the paralegal’s non-attorney status is clearly indicated.

GUIDELINE IX

An attorney shall instruct the paralegal to disclose at the beginning of any professional contact that the paralegal is not an attorney.


Comment: Disclosure must be made by the paralegal to clients and others outside the law firm to avoid any misunderstanding as to the role of the paralegal. If a paralegal becomes aware that another person believes the paralegal is an attorney, the paralegal must make it clear that this is not the case. A paralegal may sign correspondence on the law firm’s letterhead, provided the signature is followed by an appropriate designation identifying the paralegal as a non-attorney. In all communication, oral and written, the attorney should ensure the non-attorney status of the paralegal is disclosed in dealings with persons outside the office.

GUIDELINE X

An attorney is responsible to ensure that no personal, social, or business interest or relationship of the paralegal conflicts with the services rendered to the client.


Comment: If an attorney accepts a matter in which the paralegal may have a conflict of interest, the attorney should exclude that paralegal from participation in any services performed in connection with that matter. Furthermore, the attorney must specifically inform the client that a non-attorney employee has a conflict of interest which, were it the attorney’s conflict, would prevent further representation of the client in connection with the matter. The nature of the conflict should be disclosed. The attorney should caution the paralegal to inform the attorney of any interest or association that might constitute or cause such a conflict or which might give the appearance of constituting or causing such a conflict. In addition, no interest or loyalty of the paralegal may be permitted to interfere with the attorney’s independent exercise of professional judgment.

Questions and Answers

Who is a paralegal?

The KBA’s Official Standards and Guidelines for the Utilization of Paralegals in Kansas accepts the ABA’s definition: "A…paralegal is a person, qualified by education, training, or work experience, who is employed or retained by a lawyer, law office, corporation, governmental agency, or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.” (From: KBA GUIDELINES, "Definition of ‘paralegal’ ")


The use of non-attorneys in law offices is recognized by both the profession and by the Kansas Supreme Court. In In re Wilkinson, 251 Kan. 546, 834 P.2d 1356 (1992), the court acknowledged that attorneys generally employ paralegals in their practice including secretaries, investigators, law student interns, and paraprofessionals. "Such assistants,” wrote the Court, "whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services.” The court held that a lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly relating to representation of the client and should be responsible for their work product.

What qualifications should paralegals have?

Paralegals should be qualified through education, training, and work experience to perform substantive legal work. A paralegal education program should be approved by the ABA or be offered by an accredited institution which is in substantial compliance with ABA guidelines for paralegal education programs. (From: KBA GUIDELINES, Definition of "Paralegal” and Standard I & III)

Are there any certifying examinations specially designed for paralegals?

The National Association of Legal Assistants (NALA) offers the Certified Paralegal Examination. If an individual successfully passes this examination he/she is entitled to use the designation "Certified Paralegal” (CP®) or "Certified Legal Assistant” (CLA®). After achieving the CP or CLA designation, an individual may obtain additional certification in a specific field of law by passing the Advanced Paralegal Examination. If an individual successfully passes this examination, he/she if entitled to use the designation "Advanced Certified Paralegal” (ACP®).


The National Federation of Paralegal Associations (NFPA) offers the Paralegal Advanced Competency Examination® (PACE). If an individual successfully passes this examination he/she is entitled to use the designation "PACE Registered Paralegal RP®” (RP). NFPA also offers the Paralegal Core Competency Exam™ (PCCE). If an individual successfully passes this examination, he/she is entitled to use the designation "CORE Registered Paralegal™” (CRP).

(From: KBA GUIDELINES, Standard II)

What are the requirements for taking these certifying
examinations?

The requirements to sit for the certifying examinations offered by NALA can be found at http://www.nala.org and the requirements to sit for the certifying examination offered by NFPA can be found at http://www.paralegals.org. An individual should contact each of these organizations for information regarding their respective certifying examinations.

What can a paralegal do?

General Comments:

Paralegals may be employed to do substantive work, as long as the attorney assumes responsibility for their work.

Paralegals may not:

  • Represent a client in a Kansas court or agency;
  • Set legal fees;
  • Give legal advice; or
  • Accept cases.
Specific Comments:

a) May a paralegal represent a client before any Kansas court or administrative agency?

No. A paralegal cannot appear, plead, try cases, or argue in court in a representative capacity for a client. Only an attorney may perform these functions unless expressly permitted by statute, court rule, or administrative regulation. (From: KBA GUIDELINES, Guideline II)


According to a Kansas Court of Appeals decision, four categories of individuals may appear in Kansas courts (except for out-of-state attorneys): 1) members of the bar; 2) graduates of accredited law schools who have temporary permits to practice law, 3) legal interns, who are law students supervised by members of the bar responsible for the interns’ activities; and 4) non-attorneys, who may represent only themselves and not others in court. Atchison Homeless Shelters, Inc. v. The County of Atchison, Kansas, 24 Kan.App. 2d 454, 946 P.2d 113 (1997).


b) May a paralegal sign any pleading, paper, or document filed on behalf of a client with any Kansas court or agency?

No. A paralegal can sign legal papers only in a non-representative capacity, for example, as a witness or a notary public. (From: KBA GUIDELINES, Guideline II)


c) May a paralegal give legal advice?

No. While a paralegal may have knowledge or expertise in an area, he/she cannot represent to the public that he/she is qualified as an attorney. A paralegal is not practicing law if he/she is (1) communicating with the client under the ultimate direction and supervision of an attorney and (2) the paralegal is applying knowledge of law and legal procedures as authorized by the attorney. (From: KBA GUIDELINES, Guideline I)


In State ex rel. Stephan v. Williams, 246 Kan. 681, 689, 793 P.2d 234 (1990), the court adopted a general definition of practice of law from an Indiana case. "As the term is generally understood, the practice of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes the legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.” Williams, citing Eley v. Miller, 7 Ind. App. 529, 34 N.E. 836. The Williams court held the practice of law also includes "the rendition of services requiring the knowledge and application of legal principles and technique to serve the interests of another with his consent.” Id. at 689.


d) May a paralegal prepare and draft a legal document?

Yes. The work of the paralegal becomes the attorney’s work product and the attorney is responsible for reviewing and approving the contents of documents prepared by the paralegal. (From: KBA GUIDELINES, Guideline IV)


e) May a paralegal communicate factual, scientific, or technical information to clients?

Yes. (From: KBA GUIDELINES, Guideline IV)


f) May a paralegal conduct legal research?

Yes. (From: KBA GUIDELINES, Guideline IV)


g) May a paralegal communicate directly with an opposing party?

No. No attorney or paralegal may communicate with an opposing party who is represented by counsel. (From: KBA GUIDELINES, Guideline III; see KRPC 4.2 & 5.3)


h) May a paralegal take a deposition?

No. A paralegal, however, may attend a deposition and assist the attorney during the deposition by taking notes and coordinating documents and exhibits. (From: KBA GUIDELINES, Guideline IV. K.S.A. 60-230(h) provides that paralegals of the respective parties’ counsel may attend and assist at depositions.)


i) May a paralegal sit at counsel table in court?

Yes, if permitted by local court rules. (From: KBA GUIDELINES, Guideline IV)

May the name of a paralegal be printed on a firm’s letterhead?

Yes. In December 1992 the KBA Professional Ethics Advisory Committee authorized the listing of the name of a paralegal on the letterhead of an attorney or law firm. The status of the paralegal must be clearly designated. (From: KBA GUIDELINES, Guideline VII and KBA Professional Ethical Opinion 92-15. Opinion summary: Non-attorney paralegals may be listed on a law firm’s letterhead if they have achieved some minimal training as a paralegal over and above that customarily given legal secretaries and such listing is explained fully on the letterhead as to their non-attorney status. Supervised non-attorney employees may use business cards or separate, non-letterhead stationery containing their name and a clear identification of their capacity. No distinction is made between private firms and corporate law departments.)

How should a paralegal sign correspondence on the law firm’s letterhead?

A paralegal may sign correspondence on the law firm’s letterhead, provided the signature is followed by an appropriate designation identifying the non-attorney status. (From: KBA GUIDELINES, Guideline IX)

May a paralegal have a business card?

Yes. A paralegal may have business cards designed to identify him/her as a paralegal and to state by whom the paralegal is employed. (From: KBA GUIDELINES, Guideline VIII and KBA Professional Ethical Opinion 85-4. Opinion Summary: Paralegals may use business cards including the name and address of the attorney or law firm employing the paralegal, provided that the paralegal is clearly identified as such and provided no false or misleading claims are made considering the status or authority of the paralegal. The attorney/employer is responsible for ensuring the card meets the same standards of dignity and accuracy as would be required for an attorney’s business card.)

May a paralegal be a partner or shareholder in a law firm?

No. This rule, however, does not prohibit an attorney from entering into a business association with a paralegal for purposes other than the practice of law. (From: KBA GUIDELINES, Guideline VII)

May an attorney or law firm share legal fees with a paralegal?

No. Paralegals may be compensated with salaries, benefits (such as insurance coverage and pension and profit sharing plans), and bonuses. There can be no compensation directly tied to the existence or amount of a particular legal fee. The paralegal should not be compensated for the recommendation of the attorney’s services nor have a limitation on compensation because of lack of such referrals. This prohibition does not mean that the paralegal cannot make the services of the attorney known. (From: KBA GUIDELINES, Guideline VI)

Are the hours of paralegals billable to the client and are paralegal fees recoverable?

Yes, if approved by the client and/or approved by a court and provided a paralegal is performing substantive legal work that, absent such paralegal, would be performed by an attorney. The key is the performance of substantive work. Paralegals perform tasks that were previously performed by attorneys. The lower hourly rate of the paralegal reduces the cost of legal services to the public. (From: KBA GUIDELINES, Guideline VI, and Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 2471, n. 10 (1989). Summary of Missouri v. Jenkins: Missouri upheld the granting of fees for paralegal services based on market value. The court stated, "By encouraging the use of lower costs paralegals, rather than attorneys whenever possible, permitting market-rate billing of paralegal hours encourages cost effective delivery of legal services.” The court set out the following qualifications in order for fees to be recoverable: a) the paralegal must be performing "legally substantive work,” not clerical work; b) the paralegal’s time is recoverable at market rate; and c) the paralegal must be qualified to perform paralegal work.)

What are the attorney’s responsibilities with respect to the use of the paralegal?

An attorney shall not permit a paralegal to engage in the unauthorized practice of law. An attorney is also responsible for properly supervising the work of a paralegal and instructing the paralegal to preserve the confidences and secrets of clients. (From: KBA GUIDELINES, Guideline I, III & V; see KRPC 1.6 & 5.3)

Who is responsible for identifying the employee as a paralegal?

Both the attorney and paralegal should ensure the non-attorney status of the paralegal is understood by clients and others outside the law office. If an attorney and/or paralegal become aware that another person believes that the paralegal is an attorney, the status of the paralegal must be communicated to the person immediately. (From: KBA GUIDELINES, Guideline IX)

What if an attorney accepts a matter in which the paralegal may have a conflict of interest?

If an attorney accepts a matter in which the paralegal may have a conflict of interest, the attorney should exclude that paralegal from participation in any services performed in connection with that matter. Furthermore, the attorney must specifically inform the client that a non-attorney employee has a conflict of interest which, were it the attorney’s conflict, would prevent further representation of the client in connection with the matter. (From: KBA GUIDELINES, Guideline X)


A law firm that employs a paralegal who formerly was employed by another firm may continue representing clients whose interest conflict with the interest of clients of the firm employee if 1) the former employing firm and their affected clients consent after consultation, or 2) the employee can meet the burden of proof that he or she did not acquire "material and confidential information during the course of his former employment.” A screening wall imposed unilaterally is inappropriate to meet this burden. See Lansing-Delaware Water District v. Oaklane Park, Inc., 248 Kan. 563, 808 P.2d 1369 (1991); see also Chrispens v. Costal Refining and Marketing, Inc., 257 Kan. 745, Syl. ¶¶ 2, 6, 8 and 9.


Zimmerman v. Mahaska Bottling Company, 270 Kan. 810, 784 P.3d 784 (2001), discusses the disqualification of law firms for conflicts of interest by non-attorney staff. Summary of Zimmerman v. Mahaska: Attorneys generally employ assistants in their practice, including secretaries, investigators, law student interns, and paralegals. Such assistants, whether employees or independent contractors, act for the attorney in rendition of the attorney’s professional services. An attorney should give such assistants appropriate instruction and supervision concerning the ethical aspect of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for his or her work product. The measures employed in supervising non-attorneys should take account of the fact that they do not have legal training and are not subject to professional discipline.


Non-attorney personnel are widely used by attorneys to assist in rendering legal services. Paralegals, investigators, and secretaries must have ready access to client confidences in order to assist their attorney employers. If information provided by a client in confidence to an attorney for the purpose of obtaining legal advice could be used against the client because a member of the attorney’s non-attorney support staff left the attorney’s employment, it would have a devastating effect both on the free flow of information between client and attorney and on the cost and quality of the legal services rendered by an attorney. Every departing secretary, investigator, or paralegal would be free to impart confidential information to the opposition without effective restraint. The only practical way to assure that this will not happen and to preserve public trust in the scrupulous administration of justice is to subject these "agents” of attorneys to the same disability attorneys have when they leave legal employment with confidential information.


The policy of protecting the attorney-client privilege must be preserved through imputed disqualification when a non-attorney employee, in possession of privileged information, accepts employment with a firm who represents a client with materially adverse interests.


A law firm that employs a non-attorney who formerly was employed by another firm may continue representing clients whose interests conflict with the interests of clients of the former employer if (1) the former employing firm and its affected clients consent after consultation, or (2) the employee can meet the burden of proof that he or she did not acquire material and confidential information during the course of his former employment. A screening wall imposed unilaterally is inappropriate to meet this burden under our case law.

What are the attorney’s responsibilities toward the activities of the paralegal regarding the Kansas Rules of Professional Conduct (KRPC)?

It is the responsibility of the attorney/employer to instruct and supervise a paralegal so that he/she will not involve the Attorney in violations of the KRPC. (From: KBA GUIDELINES, Guideline III)


According to KRPC RULE 5.3, Responsibilities Regarding Non-attorney Assistants:

  • a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the attorney;
  • an attorney having direct supervisory authority over the non-attorney shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of a attorney; and
  • an attorney shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by an attorney if:
  • the attorney orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
  • the attorney is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Comment: Attorneys generally employ assistants in their practice, including secretaries, investigators, law student interns, and paralegals. Such assistants, whether employees or independent contractors, act for the attorney in rendition of the attorney’s professional services. An attorney should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising non-attorneys should take into account that non-attorney assistants are not subject to professional discipline.

Benefits of KBA Associate Membership

The KBA exists to be of service to you. Paralegals may become associate members of KBA. KBA membership helps you succeed in today’s competitive legal market and enhances your professional image. Your KBA membership includes:

  • A yearly subscription to The Journal of the Kansas Bar Association, which contains substantive articles, court opinions, and news important to the Kansas legal community;
  • Discounted meeting registrations and CLE seminars;
  • Access to CaseMaker on the KBA website;
  • Weekly e-mails of digested court opinions and legislative updates;
  • Ethics advisory opinions;
  • KBA Lawyer Bookstore;
  • Numerous publications; and
  • Much more!

Invest in your career. Reap the benefits by association with your colleagues of the Kansas Bar Association. Join online at http://www.ksbar.org/JoinRenew.

Attorney Checklist for Working With Paralegals

  • The paralegal has a copy of the Kansas Rules of Professional Conduct (KRPC).
  • The paralegal has reviewed the Kansas Rules of Professional Conduct (KRPC) with all attorneys having direct supervisory authority over the paralegal.
  • The paralegal has a copy of KBA’s Official Standards and Guidelines for the Utilization of Paralegals in Kansas.
  • The paralegal has reviewed the KBA’s Official Standards and Guidelines for the Utilization of Paralegals in Kansas with all attorneys having direct supervisory authority over the paralegal.
  • The paralegal has reviewed the ethics code of any professional association of which the paralegal is a member.
  • The attorney has provided and reviewed with the paralegal any internal policies and/or procedures relating to the actions/functions of a paralegal that are applicable in the employment setting (government agency, corporate office, or private law firm).
 
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