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(1) there’s no empirical support that mandatory continuing legal education enhances lawyer competency or professionalism and;

(2) the state bar has a financial interest in CLE marketing.

There was a very good Op-ed in this morning’s New York Times, Steven Harper’s “Too Many Law Students, Too Few Legal Jobs.”

I know. It’s all been said before, especially by the now declining scamblog movement.

But I still encourage you to read it, especially since Harper again challenges the American Bar Association (ABA) to do something about the dysfunctional system it’s had such a strong hand in perpetuating: law schools “operating without financial accountability and free of the constraints that characterize a functioning market.” As Harper and others have critiqued, despite its recent task force on the future of legal education, the ABA persists in doing little to effectuate real reforms concerning law school funding, tuition pricing, student debt loads and earnings potential.

Bite and breadth.

The criticisms about the state of legal education have also been made before with arguably more bite — but with equal breadth by law school professor and reform advocate Paul Campos. Indeed, in September 2014, writing in The Atlantic, Paul Campos summarized the problem like this:

“. . . the Congressional Budget Office projected that Americans will incur nearly $1.3 trillion in student debt over the next 11 years. That figure is in addition to the more than $1 trillion of such debt that remains outstanding today. This is the inevitable consequence of an interwoven set of largely unchallenged assumptions: the idea that a college degree—and increasingly, thanks to rampant credential inflation, a graduate degree—should serve as a kind of minimum entrance requirement into the shrinking American middle class; the widespread belief that educational debt is always “good” debt; the related belief that the higher earnings of degreed workers are wholly caused by higher education, as opposed to being significantly correlated with it; the presumption that unlimited federal loan money should finance these beliefs; and the quiet acceptance of the reckless spending within the academy that all this money has entailed.” See The Law-School Scam

Harper, a former big law partner, has like Professor Campos, opined extensively on the same topics, including in his 2013 book, The Lawyer Bubble: A Profession in Crisis and more recently in his law review article, Bankruptcy and Bad Behavior – The Real Moral Hazard: Law Schools Exploiting Market Dysfunction.

The themes are familiar ones, including the law school market dysfunction and how “Current federal student loan and bankruptcy policies encourage all law school deans to maximize tuition and fill classrooms, regardless of their students’ job prospects upon graduation.”

And as Harper explains, a “law school moral hazard” has been created where having incentives to do so, persons take more and more risks because someone else will bear the burden of those risks. He says this moral hazard has combined “with prelaw students’ unrealistic expectations about their careers to produce enormous debt for a JD degree that, for many graduates, does not even lead to a JD-required job.”

Meantime, as Harper and Campos are so good at reminding, for law schools this just means pay no mind as their beat goes on.

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Photo Credits: All photos via morguefile.com

Untitled | by Eddy Pula

Engagingly educational continuing legal education program? I don’t remember when. But who said lawyers were supposed to be engaged let alone entertained at these programs. Continuing legal education is instead meant to supposedly make lawyers more competent and more professional. But the thing is, there’s never been empirical support for that proposition.

File:Pirouette.gifAll the same, virtually all state supreme courts continue to mandate CLE while state bar program providers continue to pirouette around whether the programs improve attorney competence or enhance professionalism.

Indeed, among my favorite dance meanders are the ones offered by the New Jersey Supreme Court’s Ad Hoc Committee on Continuing Legal Education, which was tasked in 2007 “to determine whether it could find a compelling case against the establishment of mandatory continuing legal education (MCLE or CLE) in New Jersey.”

“Admittedly,” the Committee said in its 2008 report, “empirical data affirming the effectiveness of mandatory CLE do not appear to exist.” But did that bit of obviousness stop the Committee from predictably recommending the comprehensive implementation of mandatory CLE?

morguefile.com

Of course not, even as the Committee was admitting that the absence of evidentiary support “has been acknowledged by almost every jurisdiction that has adopted mandatory CLE, perhaps in recognition that the critical problems associated with defining competence and developing a test regimen to measure for improved performance have not been resolved.”

Or just maybe, the better reason for the lingering inability to find a competency testing metric is that it’s preferable to keep offering up that ‘X is true because there is no proof that X is false.’ Or as the Committee said in its report, “Given that continuing education is inherent in the concept of professionalism and the widely held view that voluntary continuing legal education is beneficial, what reasons, other than the absence of empirical data, mitigate against making CLE mandatory? We have found few, if any.”

morguefile.com

So as of January 1, 2010, Rule 1:43 has required all New Jersey licensed attorneys to take 24 hours of continuing legal education every two years, including at least 4 hours on topics related to ethics and/or professionalism.

And with that preamble, here’s the latest FREE CLE update. The usual disclaimers about availability, content and jurisdictional creditworthiness apply.

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Technolawyer.com

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Photo Credits: Untitled by Eddy Pula at Flickr Creative Commons Attribution; Pirouettes performed by Daria L during Paquita grand pas de deux adagio by Jim Lamberson at Wikipedia Commons.

“States that have voluntary bar associations by and large do not have lower overall bar dues,” says a footnote in the Draft Report posted by the Arizona Supreme Court’s State Bar of Arizona Mission and Governance Task Force. “They charge both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona.”

Sounds well and good — but too bad for the Kool-Aid guzzlers, it doesn’t pass a fact check.

Caricatures 14You can read the Draft Report here and find the above-mentioned quote at the bottom of page 13.

Fact-checking the Bar.

After the better part of a year, you’d think the Task Force would have spent a little more time fact-checking and getting its story straight. Or maybe like George Costanza, it just believes it — so it must be true.

Certainly, there’s a lot in the Task Force Report upon which to take exception, not the least being the conflated mythology again fluttered out on frayed wings that only a mandatory bar can “ensure professionalism and competence” and that only a mandatory bar can protect the public from its lawyers.

Night Shift 31This, of course, ignores the robust lawyer regulation and disciplinary regimes in 18 voluntary state bar jurisdictions. It also wrongs and misconstrues the panoply of membership benefits provided by voluntary bar associations, to name a few, like Ohio’s, Iowa’s, Colorado’s, New York’s, and Illinois.’

Indeed, many if not all the voluntary bar association programs and benefits rival and even exceed the programs, activities and services offered by the compulsory State Bar of Arizona.

And yet, the Arizona Bar likes to pretend that only mandatory bars make available client protection funds; offer law office management and lawyer assistance programs; provide continuing legal education courses; present annual bar conventions; publish monthly bar magazines or support ethics hotlines. Begging the question, the Draft Report shamelessly proclaims,These invaluable services will cease to exist with the demise of the integrated bar because no voluntary bar in Arizona offers them.”

Instead, see what happens in jurisdictions with voluntary bar associations, for example, check out: Ohio and Iowa and New York and Colorado and Illinois. Lawyers in those jurisdictions choosing to join their state’s voluntary bar associations don’t take a back seat to anything offered by the mandatory State Bar of Arizona.

Twain's Men's Room | by bump

 

morguefile.com photo

It takes two hands to put out this whopper.

As for the whopper about how both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona,” the facts are set out in the chart below.

The data concerning optional voluntary state bar association membership dues was obtained from readily available public online information from voluntary state bar jurisdictions. The attorney registration fee information comes from state court websites although since the Arkansas Supreme Court fee registration information was not publicly accessible, it was confirmed by a licensed Arkansas lawyer.

 

 

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click to enlarge

The fees in the chart are the full fee maximums for lawyers practicing past the entry-level graduated fee periods. Newbie lawyer fees are typically discounted.

No MCLE in Connecticut, Maryland and Massachusetts.

And then take note of something else not mentioned in the chart. While the breathtaking $945.00 combined regulatory assessment and separate voluntary bar dues appear to make Connecticut a high cost to practice jurisdiction, the overall cost to practice is still lower than in Arizona. Why? Because unlike Arizona, Connecticut does not have mandatory continuing legal education (MCLE). This saves Connecticut lawyers anywhere from $600 to $1000 per year versus what Arizona lawyers pay to satisfy the annual 15 hour MCLE requirement.

The same is true of Massachusetts with its sizeable $761.00 combined regulatory assessment and separate voluntary bar dues. Massachusetts does not have a MCLE requirement. Nor does Maryland, which at $280.00 for both regulatory assessment and voluntary bar dues must be the lowest cost to practice jurisdiction in the United States.

Comparing overall costs to practice.

Work World 14The bottom line is two-fold: One, in voluntary bar states, lawyers can elect to pay only their court-mandated regulatory registration fees and forego joining a voluntary state bar association. This automatically reduces their overall cost to practice as compared to Arizona.

Two, the exact opposite is true of the Task Force’s claim that Arizona’s bar dues are often exceeded by the combined regulatory assessments and voluntary bar dues in voluntary bar jurisdictions. Lawyers in states that have voluntary bar associations pay lower overall bar dues, in some instances much less than the current and still escalating annual membership fee in the State Bar of Arizona, which hits $520 per year on January 1, 2018.

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Photo Credits: Pants_on_fire_1429.jpg by TV Tropes via Creative Commons Attribution-ShareAlike 3.0 Unported license ; Twain’s Men’s Room, by Robert Occhialini at Flickr Creative Commons, Attribution-NonCommercial 2.0 Generic License.

So Friday afternoon the Arizona Supreme Court’s Task Force on State Bar of Arizona Mission and Governance posted its draft report to the sound of one-handed clapping. Anyone inclined to read the report can visit the court’s webpage.

But since the proverbial die is cast, it makes no difference that after-the-fact comments are being solicited from the hoi polloi.  Any remarks from the naked unwashed will be just in time to be too late and as inessential as a take-a-penny, leave-a-penny tray on a 7-11 counter.

The state high court will do as it pleases and it will please to keep the status quo: a compulsory state bar — just as the Task Force recommends. The rest of the recommendations are much ado about not much, such as recommending a smaller cast of characters now called “trustees” instead of “governors” to oversee policy-making and operations. As previously reported here and here, the Task Force, its report and recommendations will remain largely cosmetic and so inconsequential as to have a thimbleful’s worth of relevance to members.

Integrated not compulsory.

morguefile.com photo

The Task Force prefers dressing up the compulsory nature of the official state organization to which all attorneys must belong and where pay-to-play is the required precondition to earn a living as lawyers. Rather than “mandatory” or “obligatory” or “compulsory,” like state bar elites elsewhere, they’re partial to innocuous modifiers such as “integrated.” Other favorites include, “incorporated” or “organized” or “unified” to describe their state organizations — anything to disguise the fact that unlike physicians, architects, CPAs, dentists, engineers and tattoo artists, only lawyers are singled out for compelled dues-playing professional state association membership for ‘the privilege’ of earning a living in their chosen profession.

Clarifications.

The work of the Task Force has been mostly below-the-radar. This is typical of a state bar that treats transparency like Arizonans treat the amount of window tinting used to shield themselves from the desert sun. Unsurprisingly, one year after its creation, the odds are good most Arizona lawyers know little if anything about the Task Force. And now, they’re asked to comment about something they know little to nothing about.

morguefile.com photo

The final draft report was kicked off with a video, which I watched while wrapping up my Friday afternoon work. I’ve yet to read the 116-page report. All the same, surprises? Expect none — unless the Task Force’s risible consultation with the California State Bar counts as one.

For now, here are a couple of needed clarifications after watching the announcement video:

1) Contrary to the Task Force’s assertions, voluntary state bar jurisdictions like New York, Indiana, Illinois and Colorado amply demonstrate that lawyer regulation and discipline are not dependent on the existence of a compulsory bar. In those voluntary bar states, the state supreme courts handle those functions.

morguefile.com photo

The State Bar of Arizona, however, would like nothing better than to continue perpetuating an absurd mythology that lawyers can’t be regulated or disciplined or the public protected without a compulsory membership bar association. New York, Indiana, Illinois and Colorado and 14 other states beg to differ. Those voluntary bar jurisdictions have robust regulatory and public protection programs in place without tramping on First Amendment associational freedoms.

Apples and oranges.

Ev Williams | by Christopher.Michel

2) Captain Obvious needs to point out that voluntary bar states are by plain meaning, “voluntary.” Unlike Arizona, lawyers can choose to pay their respective supreme courts only for lawyer regulation and discipline — and forgo joining a voluntary state bar. So what’s the point of comparisons between the cost to practice in Arizona with that of voluntary bar states where membership is optional? Why make comparisons between jurisdictions that seem to share a common denominator such as payment of lawyer registration fees while ignoring the fact that the jurisdictions are distinct from one another.

Besides, in virtually all instances, lawyers practicing in voluntary bar states have lower costs to practice than in Arizona — a fact the Task Force prefers Arizona lawyers not know. Instead, the Task Force speciously plays the false analogy game.

morguefile.com photo

A more accurate comparison is to only compare the court-mandated lawyer registration fees for regulation, discipline and client protection among the jurisdictions. After all, lawyer regulation and discipline are the core public protection functions and ought not to be freighted with the bureaucratic surplusage tacked on by mandatory bar associations for non-mandatory programs and activities. Otherwise, it’s all so much nonsensical claptrap, although the apples and oranges comparisons are conveniently self-serving.

Apples and apples.

morguefile.com photo

Take the voluntary bar state of Indiana, where the supreme court charges $180 per year for regulation and discipline. Membership in the voluntary Indiana bar association is $280 (6+ years of practice). Total cost to practice in Indiana is $460 if an Indiana lawyer also saw fit to join the voluntary bar. Otherwise, the cost to practice in Indiana is a $180 registration fee payable to the Indiana Supreme Court. This is a lower cost to practice than Arizona, which is currently $475 but increasing to $520 by January 1, 2018.

morguefile.com photo

Or take Illinois where lawyers pay the court an annual registration of $382, which includes regulation and discipline but is also larded with mandatory payments to the Lawyers Trust Fund ($95) for pro bono legal aid; Lawyers Assistance Program ($7); Commission on Professionalism ($25) and Client Protection Program ($25). Voluntary membership dues in the Illinois State Bar Association run from “Free” in year one to a cap of $320 in year 20. Certainly, if you combine both the court registration fees and voluntary bar association membership dues, the total cost to practice in Illinois of $702– far more than what lawyers pay in Arizona.

But what the task force conveniently omits is that there’s more than meets the eye concerning membership in voluntary bar jurisdictions. Membership in the voluntary Illinois State Bar Association also entitles members to 15 hours of FREE CLE per year. If you factor what Arizona lawyers pay for CLE, which can run upwards of $600 per year (15 hours X $40 average), the total cost to practice in Illinois is far lower than Arizona.

Registration desk sign | by NHS Confederation

And in Connecticut, another voluntary bar state that on paper looks higher than Arizona with an attorney registration fee of $665, of that amount, $565 is a separate tax that goes to the State of Connecticut Department of Revenue Services — not to the court for lawyer regulation and discipline. Meantime, membership in the voluntary Connecticut State Bar Association runs zero in year one up to $280 for admittees prior to 7/10/10. The total, excluding the $565 state tax, is less than $400 assuming a Connecticut lawyer also opted to join the voluntary bar. Otherwise, they would just pay the hefty $665 annual fee.

In Colorado, lawyers pay an annual attorney registration fee of $325 to cover regulation and discipline. Membership in the Colorado Bar Association is voluntary. New lawyers pay $100 per year and so-called senior lawyers licensed 8+ years pay $230 annually. Assuming Colorado lawyers wanted to belong to the voluntary bar association, their total annual fees would total $555.

Payment | by GotCredit

Finally, in the voluntary bar jurisdiction of New York, the attorney registration fees of $375 payable to the court are biennial, i.e., due every two years. This amount includes $60 to the Lawyers’ Fund for Client Protection; $50 to the Indigent Legal Services Fund; and $25 to the Legal Services Assistance Fund. However, New York lawyers wanting to belong to the voluntary state bar association pay $275 annually if they were admitted prior to 2006. This means that on an annualized basis, New York lawyers pay $462 if they chose to join their voluntary state bar association along with payment to the court for regulation and discipline. This is still less than what lawyers in Arizona pay.

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Photos: Registration desk sign, by NHS Confederation at Flickr Creative Commons Attribution;Ev Williams by Christopher Michel at Flickr Creative Commons Attribution, Payment by GotCredit at Flickr Creative Commons Attribution.

 

Been a while since I’ve blogged about my marginally mediocre albeit happy-go-hacking golf game. I’ll not do so here.

Instead, the other day, after watching an old guy angrily pounding his driver three times into the turf after an errant shot, I again recalled an interview of a few years ago with professional golfer Davis Love III.

In that interview, Love keenly observed, “Most golfers aren’t that good — to get that mad.”

https://i1.wp.com/images.wildammo.com/wp-content/uploads/2012/08/24.gif

But too bad so many golfers think they’re“that good.” Case in point from personal experience, the most commonly found lost ball on a given course is a hyper-expensive golf ball meant for professional golfers. But thanks to triumphant marketing to self-deluded high-handicappers, that’s also the golf ball most likely to be found at the bottom of a water hazard or nestled under a bush or buried in a third cut of rough. And at $60+ a dozen, rest assured my game will never be worthy enough to have that pricey ball in my bag. After all, “A man’s got to know his limitations.”

“Don’t want to be rude”– but shut up.

Shut-up | by stoneysteiner

So a Saturday morning later when we were randomly paired with what turned out to be one of those oh-so-serious “good” golfers, I made the mistake of making small talk before our round with this stranger. I recounted my angry golfer anecdote. And apparently, unknowingly making matters worse, I also mentioned the Davis Love III quote.

Moments later, Mr. Good Golfer announced, “I don’t want to be rude —  but I’d rather not talk during the round.

“I can be plenty sociable afterward,” he needlessly added after tooting out that stinker on the first tee. But give the guy props for uncongenial precedent and for muzzling a blabbermouth lawyer. Evidently for some folks, golf isn’t meant to be sociable.

And as for his disclaimer, I once worked with a guy who loved saying, “Anytime someone starts out a story by telling you, ‘this is no lie’ — get ready for a lie.” Clearly the same can be said for introductory pronouncements about not being rude.

Mannerliness: more myth than reality.

Like some lawyers who think their profession is akin to a sanctified priesthood, there are golfers who claim a supposed special mannerliness that defines the ethos of golf. “Etiquette is a word that’s often heard in relation to golf, moreso than with any other sport” one golf beginner’s website proudly proclaims. I frankly doubt that. I’ve encountered enough golfers who equate etiquette with indelicate. Also see this particularly inappropriate way to handle slow play, “Golfer Pulls Gun on Group Over Golf Etiquette Dispute at New Britain Course: Officials.”

No matter that golf’s governing body, the United States Golf Association (USGA) has its comprehensive rules, including an affirmation that irrespective of how competitive players are, courtesy and sportsmanship are the watchwords of “the Spirit of the Game.”

SNC11595.JPG | by bradleypjohnson

But like most high-minded goals of decorum and dignity, too often exalted aspirations end up as low-rent aspersions.

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Photo Credit: “Hey shut up,” by Urs Steiner at Flickr Creative Commons Attribution;SNC11595.JPG by bradleypjohnson at Flickr Creative Commons Attribution.

https://upload.wikimedia.org/wikipedia/commons/thumb/5/57/Kennedy-bodyslams-Holly%2C-RLA-Melb-10.11.2007.jpg/399px-Kennedy-bodyslams-Holly%2C-RLA-Melb-10.11.2007.jpg

Photo by, John O’Neill, Creative Commons Attribution-Share Alike 3.0 Unported license

A scathing state auditor’s report released last month body slammed the State Bar of California for rushing disciplinary cases to shorten a longstanding and growing backlog; for settling cases with less severity; and for going $50 million over-budget for a building renovation. The report went on to say the Cal Bar “has not consistently protected the public through its attorney discipline process and lacks accountability.” See “Auditor blasts State Bar for inconsistent discipline of bad lawyers, shoddy finances.”

To the surprise of no one, the Cal Bar accepted the auditor’s findings and even unconvincingly claimed to have already been working on the problems — “before the audit began.” Right! And I was going on a diet when they caught me eating that pint of ice cream.

This is the same state bar Arizona Supreme Court’s on State Bar Mission and Governance inexplicably opted to consult about reforming its governance structure. Sure the California Bar was ordered by the state legislature in 2010 to create a Governance in the Public Interest Task Force. And sure that task force was charged with recommending ways to “improve the existing system so as to best advance the goals of ensuring public protection.” But why would anyone think the California Bar’s ‘reforms’ were an exemplar worth studying?

https://i2.wp.com/5.kicksonfire.net/wp-content/uploads/2015/07/Seinfeld-Newman.gifWhen I heard about it, I thought it was risibly ridiculous that Arizona’s Task Force would look to the bar bureaucrats next door for insights on structural governance reform. Only an out-of-touch legal establishment with blinders on like Arizona’s would come up with that brainstorm. That’s like asking Kim Kardashian about modesty or Donald Trump about hairdos.

A dysfunctional mess.

Stressed businessman

“A consultant is a guy with gray hair so he can appear distinguished and hemorrhoids so he can look concerned.” – Malcolm Berko

For some 30 years — and longer, the California State Bar has been a dysfunctional and deservedly criticized bureaucratic mess. No matter that California Bar leaders have paid lip service to reform for years. The criticisms are legion. In 1997, then-California Gov. Pete Wilson vetoed a two-year fee authorization for the California State Bar because its actions had confirmed the charges of disgruntled members who characterized the bar as “bloated, arrogant, oblivious and unresponsive.”

An earlier audit in 2009 was critical of the Cal Bar over“negotiated salary increases over the past five years, an increase of $12 million in the operation of the discipline system — roughly 5 percent per year — while the number of inquiries declined.” And this was also the time period when unbelievably, a former Bar employee embezzled nearly $676,000 while no one was evidently minding the store. No wonder then-Governor Arnold Schwarzenegger vetoed legislation that allowed the Bar to collect its annual dues.

So this latest critical audit report is no surprise to longtime Cal Bar watchers. One inveterate and knowledgeable critic, the legal ethicist and law professor, Richard Zitrin, even lauds the legislative oversight of the Bar — something some Arizona lawyers gag on as anathema. I’m personally glad that the legislature has a say-so over the bar. Many of the reforms to the legal system that benefit the public came from the legislature, while the bar has repeatedly protected itself rather than the public,” Zitrin commented at the Legal Ethics Forum Blog.

Office Stress 92As for Arizona Court’s Task Force, there’s more embarrassment. Just months after the Task Force consulted with the California Bar’s then-Executive Director Joseph Dunn and per the meeting minutes, not long after Dunn told Task Force members about the Cal Bar’s reforms and how the board was “less contentious” and now “unified” and how the organization was “more focused, professional, and collegial” — Dunn was fired. I guess he didn’t see that one coming.

But at least the Arizona Task Force gave Dunn a round of applause for his presentation. So much for Dunn’s happy Kumbaya talk about the “proactive” California Bar and how its reforms are “the best thing that’s ever happened to the bar.”

People 6043Indeed, according to a Los Angeles Times story, “Accusations fly as State Bar of California leader Joe Dunn fights ouster, the California Bar is “once again beset with conflict, riddled with accusations involving expense accounts and ethics.” Nothing new to longtime critics of the California Bar. One California law professor told the newspaper, “The bar is just further descending into a banana republic. It is totally dysfunctional and should be unraveled.”

And since Dunn, a former state senator and trial lawyer, is not a man to take termination lying down, he is fighting back in the court of public opinion and in county superior court. He filed suit on November 13, 2014 alleging wrongful termination and claimed whistleblower liability and retaliation for allegedly reporting illegal activities and ethical breaches by high-ranking Cal Bar officials. Also see “Five things to know about the State Bar dustup with former director.”

Busy Business Women 40Too bad the Arizona Task Force was so clueless about their next-door neighbors. Otherwise, it might have refrained from a Golden State consultation or ironically enough, according to its latest list of reform recommendations, from mirroring many of the same milquetoast ‘reforms’ adopted by the California Task Force. These underwhelmingly include maintaining compulsory membership; reducing the size of the governing board; changing the board’s name from “governors” to “trustees;” and adding new qualifications, term limits and related procedures.

Then again the legal elites around here don’t have to worry about independent state audits.

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