Archive for the ‘Culture’ Category

Rod Serling - Twilight Zone Button | by TobyotterMay 11th is Twilight Zone Day, an unofficial holiday that celebrates The Twilight Zone, that iconic 1960’s era television anthology replete with unexpected twists, surprise endings and of course, the bizarre. What an appropriate day then to comment on a blast email from the president of the State Bar of Arizona.

It was an “update” received a few days ago following the defeat of HB 2221. This was the bill that having passed the Arizona House and legislative committees in both houses, came within 5 votes in the Arizona Senate of getting to the governor’s desk. The legislation failed to pass the Senate on May 5, 2016. Bar reformers vow to continue the fight next legislative session.

As for the bar president’s email, too bad it again mischaracterized HB 2221 as “the bill that would have created a two-tiered membership within the State Bar of Arizona.” Two-tiers? To practice law in Arizona, there’s only one tier. It’s called mandatory membership in the Arizona Bar, which would have singularly remained the requisite precondition to practice law in the state.

In truth, HB 2221 would have helped protect the constitutional rights of Arizona lawyers. And it would have increased transparency by subjecting the Bar to Arizona Public Records Lawlike all other state regulatory bodies.

The principal reason the State Bar opposed the bill was because HB 2221 would have forbidden it from using mandatory dues for anything other than lawyer regulation. Bar leadership didn’t want to lose access and control over both regulatory and non-regulatory mandatory assessments paid by Arizona’s lawyers.

laughing seinfeld evil newman laughThe other reason the Bar disliked the bill was because as the bar president’s email intimated, it didn’t see the need for greater public transparency. The Bar has long been a tone-deaf master of self-congratulation and self-delusion. Hardly a surprise then that the bar president declared, “our organization has worked to be exceptionally transparent.” This from the same organization that fails to provide detailed budget expense information to its members and that attempted to pass a stealth dues increase 12 days before Christmas 2013. It’s also the same organization that tried to disband member sections and impose a CLE precertification revenue enhancer both while it thought no one was paying attention. More recently, it’s also the organization that uses mandatory assessments to lobby against the interests of its members. And good luck getting a number on the extent and total dollar expenditure both internally in executive compensation and externally in outside lobbyist fees.

But as risibly self-delusional as that “exceptionally transparent” declaration was, the email also offered a sop to lawyers believing otherwise, i.e., that the Bar is not only non-transparent but secretive. The bar president pointed out that “a proposed Supreme Court rule would subject the Bar to open records and open meeting requirements.”

That ‘solution,’ however, leaves a lot unanswered. It may also prove less than satisfactory. Rather than submit to Arizona A.R.S. § 39-121, the Bar prefers to fall under Arizona Supreme Court Rule 123(a), which provides: “Pursuant to the administrative powers vested in the Supreme Court by Article VI, Section 3, of the Arizona Constitution, and the court’s inherent power to administer and supervise court operations, this rule [is] adopted to govern public access to the records of all courts and administrative offices of the judicial department of the State of Arizona.”

Well and good except that even though the Court falls under the statutorily defined plain meaning of “public body,” it has previously ruled for itself that “Rule 123 — not the Arizona Public Records Law — controls requests for judicial records.” See London v. Broderick and Arpaio v. Davis.

Furthermore, the bigger problem for the Arizona Bar is that contrary to its contention that HB 2221 would have created a “hybrid” State Bar, the fact is that the State Bar of Arizona is already a hybrid organization. It serves as attorney regulator and attorney “trade association.”

So as both regulator and trade association, does the Bar actually belong under Rule 123? Moreover, how will that work in actual practice? Clearly when the Bar uses lawyer mandatory assessments to perform regulatory functions such as lawyer discipline or lawyer admissions, it acts as a part of the Arizona Supreme Court. But what about when the Bar spends mandatory assessments on non-regulatory discretionary programs and services? When is the Bar required to be transparent? All the time? Or only when members police it? Or only when the Court deems it? Or only when it acts as a regulator?

And what about the real nub of the objection? How about when the State Bar uses mandatory assessments for everything else under the Arizona sun having nothing to do with regulating the legal profession to improve the quality of legal services to the public?


Credits: “Rod Serling – Twilight Zone button,” by Tony Alter at Flickr Creative Commons Attribution.

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In some parts of the world, the first day of May is May Day or International Workers Day. But thanks to a proclamation during President Eisenhower’s administration, May 1st in the U.S. is Law Day. It’s meant as the day each year to celebrate the rule of law in society. So quite appropriately comes a timely news story to momentarily ease the otherwise burdened cynical heart.

The salutary tonic is administered through the story of Judge Lou Olivera, a North Carolina District Court jurist, whose extraordinary compassion provides the welcome antidote. This past April 13th, Judge Olivera sentenced former Green Beret Joseph Serna to spend 24 hours in jail for a probation violation. Serna is a retired Army veteran who served almost 20 years. Deployed four times to Afghanistan, he earned three Purple Hearts and was almost killed three times. But since leaving the service, Serna has struggled with post traumatic stress disorder (PTSD).

To cope, Serna has self-medicated with alcohol. As a consequence, he has run afoul of the law. Having violated his probation with a DUI, he appeared in Judge Olivera’s courtroom last month. Judge Olivera, himself a Gulf War veteran, runs the county’s Veterans Treatment Court.

“I gave Joe a night in jail because he had to be held accountable,” the judge later explained. But concerned that sentencing Serna in isolation for a night would trigger his PTSD, Judge Olivera did something truly remarkable. He decided to spend the night with Serna in the one-man cell. They spent the time talking about their military experiences. Serna said it felt like “a father-son conversation.”

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“May I ask what you’re doing?” asked the thickly accented Germanic voice through the trees.

I’d just parked my car and planned to walk one of our dogs on a recent afternoon. After riding over 3 hours in the back seat, she needed to do what dogs do. We’d alighted in what I once thought was a friendly neighborhood, the kind of welcoming place you might be happy to live in. Indeed, the location is next to one of our favorite local golf courses.

My plastic bag was in one hand and our leashed tail wagger was in the other. She blissfully sniffed the grass next to the public sidewalk while I looked up at the unexpected questioner. Through the branches, I saw he was a tall ruddy-faced senior standing in the yard of the adjoining residence.

“I’m walking my dog,” I answered as though not patently obvious even to the half-sighted. “Why are you asking?” I inquired.

Pachuco | by gabofr

“We have a neighborhood block watch,” he replied sharply. “Well, good for you,” I rejoined now understanding what this was really about.

Not that I wear my sensitivities on my sleeve. Still, I used to wonder — but no longer do — about the point in life when age, appearance or socioeconomic status finally insulates from small-minded prejudice. It never does.

Those sculpted and fired by intolerance see what they want to see. No matter if you dress neatly or drive a nice car. Or are past your middle earlies and are minding your own business on a sunny public walkway with a contented canine. For folks partial to a preferentially homogeneous community, there goes the sidewalk. You can take the Latino out of the ‘barrio’ but you never take the barrio out of the Latino.

Ethnic stereotyping and racial profiling are part of growing up in urban America.

fp031216-02 | by fontplaydotcom

And as a son of Boyle Heights, I was no stranger to it, especially in adolescence and early adulthood. I had my share, including at the hands of L.A.’s ‘finest.’

“May I ask you not to come onto my driveway,” the stranger inhospitably admonished. “Don’t worry, I have no intention,” I answered as he turned and walked away.“And you’re a friendly one,” I added.

Not that he went away. He turned and stood in his open garage and looked on and frowned. Just another bigoted day in the neighborhood.


Credits: “Pachuco,” by Gabriel Flores Romero at Flickr Creative Commons Attribution; “fp031216-02,” by Dennis Hill at Flickr Creative Commons Attribution.

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File:John Balfour Vanity Fair 1 May 1886.jpgAt one end of the spectrum, there’s news that lawyer hourly rates among the so-called guilded circle have topped $1,500 per hour. According to a report in the Wall Street Journal, these aren’t even the top end rates. The most highly specialized among these legal elites, buoyed by inelastic supply and demand, can command almost $2,000 per hour. The rarefied set billing at these rates undertake price be damned high-profile litigation. Or they’re handling antitrust, mega mergers, acquisitions, tax, and large bankruptcy restructures.

There’s a wrinkle, though, to all this high-priced gold. According to Altman Weil’s 2014 survey, while overall big firm billing rates have gone up by 4%, on average firms have been discounting hourly rates by 21 to 30%.

Then there’s the other end of the news cycle. It’s the story about the Spanish civil servant employed by a city-owned water utility who hadn’t been at work for almost six years — but no one had noticed. Talk about an employee adding ‘value’ for clueless bosses. He was only found out when his employer tried to recognize him for 20 years of service. No gold watch but a certificate. After an investigation was opened, it was learned he “did absolutely no work” from 2007 to 2010 prior to his 2011 retirement. Some $30,000 is being sought in restitution.

The story reminded me of the lazy person’s 10 commandments that I once posted about. It concerned a scientific global study by “Lancet” that ranked nations according to the laziness of their populations. I hasten to add that I cast no aspersions on the Spaniards.

Of course the real reason for bringing up $1500+ hourly rates is to make the point these rates are highly atypical — even aberrational. Among the other 99% billing by the hour, those rates are unheard of and totally unrepresentative. Indeed, that’s precisely why the über hourly rate report was so newsworthy. Most lawyers aren’t doing so well.

https://upload.wikimedia.org/wikipedia/commons/thumb/9/9a/Big_Mac_hamburger.jpg/278px-Big_Mac_hamburger.jpgAs a matter of fact, I still remember when Jay Foonberg in his famous How to Start and Build A Law Practice was advising new lawyers without a notion of how to set hourly rates — to use burgernomics. In other words, he suggested indexing their fees to the local cost of a McDonald’s Big Mac. The suggestion was certainly more art than science. Use a multiple of 10 of the cost of a Big Mac — or something like that.

I haven’t had a Big Mac in years so I don’t know what they cost these days. Suffice it to say, however, that at an exalted $1500+ per hour that’s likely a multiple of some 400 to 1.

In Arizona, according to the most recent lawyer economics report, the median annual income was $75,000 for sole practitioners. Along with small firms, solos make up 2/3 of all lawyers. Other data suggests median lawyer annual income across the country might even be less. See “How about a raise?”

But for all I know there might be a big firm hereabouts charging 400X the cost of a Big Mac. But like I said, I haven’t had a Big Mac in a long time.


Credits: Caricature of John Blair Balfour PC MP. Caption read “the Lord Advocate” by Leslie Ward at Vanity Fair via Wikimedia Commons, public domain;”A McDonald’s Big Mac hamburger, as bought in the United States,” by Evan-Amos via Wikimedia Commons, Creative Commons.

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“What’s black and tan and looks good on a lawyer?

A Doberman,” was the answer to an unfunny lawyer joke.



But it was no joke for me. Our beloved Doberman, Anna, spent her last day on earth on December 26th. She was just days shy of her 13th birthday. What a sad way to punctuate Christmas.

As for looking good on a lawyer, that she did whenever she leaned on me. She was a beautiful girl. And leaning is what Dobermans do. Called the “Dobie lean,” it’s a breed trait.

Dobermans don’t give kisses to show affection. They lean on you instead. Often misunderstood and unfairly dismissed as ‘scary,’ in truth Dobermans are just as a friend once described, “They’re Golden Retrievers in Doberman skin.”  And Anna was among the gentlest souls — ever. Although watchful, there wasn’t a mean bone in her.

The past few years, Anna ailed from chronic arthritis. We’d managed it for her. But the past two months, it increased in severity. Frailer and ever more unsteady, her quality of life took a nosedive.

When that happens, those of us who bring these treasured creatures into their forever homes must at the end, honor the pact we make at the beginning.

It’s best summed up by “A Dog’s Plea,” author unknown. For years I kept a framed copy on my office wall.

“Treat me kindly, my beloved friend, for no heart in all the world is more grateful for kindness than the loving heart of me.

“Do not break my spirit with a stick, for although I should lick your hand between blows, your patience and understanding will quickly teach me the things you would have me learn.

“Speak to me often, for your voice is the world’s sweetest music, as you must know by the fierce wagging of my tail when your footsteps falls upon my waiting ear.

“Please take me inside when it is cold and wet, for I am a domesticated animal, no longer accustomed to bitter elements. I ask no greater glory than the privilege of sitting at your feet beside the hearth. Keep my pan filled with fresh water, for I cannot tell you when I suffer thirst.

“Feed me clean food that I may stay well, to romp and play and do your bidding, to walk by your side and stand ready, willing and able to protect you with my life, should your life be in danger.

“And, my friend, when I am very old, and I no longer enjoy good health, hearing and sight, do not make heroic efforts to keep me going. I am not having any fun. Please see that my trusting life is taken gently. I shall leave this earth knowing with the last breath I draw that my fate was always safest in your hands.”

On Anna’s death, a nephew said he admired the courage we have to love our dogs because we are willing to endure the pain of their loss. The reality is that losing these cherished family pets gets harder not easier. But you do it because of love as my favorite modern poet, Mary Oliver, wrote of her late dog, Percy:


I Ask Percy How I Should Live My Life
Mary Oliver

“Love, love, love, says Percy.
And hurry as fast as you can
along the shining beach, or the rubble, or the dust.

“Then, go to sleep.
Give up your body heat, your beating heart.
Then, trust.”



She remains my profile avatar and muse for this blog.

I will miss Anna’s companionable presence and her soft nudges on my left elbow while I worked at my desk. I will miss her soft murmurings as she’d run in place asleep on her side, dreaming of chasing jack rabbits. I will miss her turning upside down four paws up and scratching at the air. I will miss her loud powerful barks at the start of every walk. Like a bygone town crier, she’d announce to the neighborhood “here I am” and all’s right with the world.

Next to persistently asking for never-ending pats on her head and hanging out with those she loved, there wasn’t anything better than a walk.

Years ago on our walks in No. Nevada, she’d remind me of another favorite Mary Oliver poem, “Spring” and especially the lines, “Meanwhile, my dog runs off, noses down packed leaves into damp, mysterious tunnels. He says the smells are rising now stiff and lively;

“. . . My dog returns and barks fiercely, he says each secret body is the richest advisor, deep in the black earth such fuming nuggets of joy!”

I’ll always think of Anna as our own fuming nugget of joy.

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photoMandatory state bars long ago lost their ability to surprise. Just when you think tin-eared insularity reaches its limits — wait two beats — there’s always more.

Last month, for example, in his President’s Message: Task Force to Tackle Unauthorized Practice of Law, the Nevada State Bar President after first announcing a new bar task force to study the U.S. Supreme Court’s 6-3 decision against state-sponsored protectionism in North Carolina Board of Dental Examiners v. Federal Trade Commission, then surprisingly segued into a clarion call for more ways “to protect the public interest” from the unauthorized practice of law. Methinks he reached the wrong conclusion.

As a matter of fact, the North Carolina Dental Board case runs counter to self-regulated active market participants fostering anti-competitive regulations and actions for their own — not the public’s benefit. Writing for the majority, Justice Anthony Kennedy explained “Active market participants cannot be allowed to regulate their own markets free from antitrust accountability. When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. If a state wants to rely on active market participants as regulators, it must provide active supervision.”

No wonder those who aren’t state bar presidents are reading the case as “a blow for consumers and economic freedom.” Others even opine it may “drill down into bar associations’ [anti-trust] immunity.”

But no worries apparently in Nevada. In fact, some mandatory bars are acting as though the ruling has no impact since mandatory bar governing boards are either under the “active supervision” of state supreme courts or because lawyer regulation comes under the state supreme court or because bars don’t define what constitutes the practice of law (UPL).

In Arizona, where what constitutes the practice of law has been progressively diluted first, by court-certified legal document preparers exempted from UPL by supreme court rule and soon by the rumored introduction of Washington State-styled Limited License Legal Technicians, I predict the besainted Arizona Bar will declare itself anti-competitively pure.

But at least one mandatory state bar association has decided to pay half attention to what happened to North Carolina’s dentists. The State Bar of Washington announced last week it was suspending some ethics opinions because of antitrust concerns.

Bright line test.

Outside the insular world of bar associations, public interest and consumer groups are also weighing in. In a letter to California’s Attorney General earlier this year, consumer interest representatives asked for an inquiry of all state regulatory bodies in California.

Calling the North Carolina decision a “bright-line minimum test,” the public interest groups wrote, “Those controlling the decisions that might restrain trade may not be “active market participants” in the trade regulated. For every agency so afflicted, the legal status of those making such decisions is clear – they are, in the words of the Court, “nonsovereign actors” who lack any state sovereign immunity whatever. Their decisions are no different than a decision undertaken by a cartel or private combination of competitors. You are invited to review the decision en toto and draw your own conclusions, or to refer it and this letter to the leading antitrust prosecutors and experts in your jurisdiction.”

Concerning lawyers and state bar associations, in a footnote the correspondents declared, “By way of illustration: State bars controlled by attorneys rarely discipline for excessive billing or intellectual dishonesty. Few require any demonstration whatever of competence in the actual practice area of law relied upon by clients. Few require malpractice insurance, or in any way ameliorate the harm from attorney incompetence.

“The point is, each of the many agencies within your state is empowered to carve out momentous exceptions from federal antitrust law, and those decisions in particular require a level of independence from the implicit focus of current practitioners.”

The woes of the amici.

Before the decision, some mandatory state bars had signed onto the North Carolina Bar’s amicus brief asking the Supreme Court to overturn the Fourth Circuit. They’d claimed that upholding the Fourth Circuit would interfere with the state sovereign’s ability to regulate state-licensed professionals and state public protection laws. See “SCOTUS’ Upcoming Decision Could Leave State Bar Associations Toothless.”

They cited 4 likely gloom and doom impairments:

“(1) The limited resources available to prosecute lawyer misconduct and to prevent the unauthorized practice of law will be diverted to litigating whether the state bar’s action has been actively supervised in a manner sufficient to provide state action immunity.
(2) State bars will have to defend expensive antitrust actions even though states explicitly authorize the state bars to regulate the conduct being challenged.
(3) Lawyers will be reluctant to serve as bar councilors for fear of being sued—and of being held individually liable—in treble damage antitrust actions.
(4) Councilors who do agree to serve may be deterred from fulfilling their state authorized enforcement duties against defendants who threaten antitrust claims.”

Ironically, given the subsequent underwhelmed attitudes of some state bars in the case’s aftermath, the woes of the amici may have been overwrought pretense or much ado about nada. Perhaps the Justices were right to pay no mind.

Such little reaction despite all those supposed impairments. It appears the sky was never going to fall.

Or I’m wrong after all. No clue may be better than half-a-clue.





Photo Credits: “No Tolerance” by Jimmy Changa, Icky Pic, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; Other photos via Morguefile.com, no attribution required.




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I was having my weekly bowl of pho — but not at the phonetically mischievous Beaverton, Oregon restaurant pictured above. If you don’t know, the Vietnamese rice noodle and beef soup known as pho is pronounced ‘fuh.’ You figure out the rest.

P1060297 | by Longster47

In any event, I was slurping and reading about an Aussie-Vietnamese hoaxer who’d punked the news and online social media. The faker falsely claimed Facebook had discriminated against him by repeatedly shutting down his Facebook profile over accusations he was using a fake name. He claimed his name was ‘Phuc Dat Bich’ and even posted an online image of his passport to ‘prove’ it was really his given name.

But Facebook was right after all. The name was fake, all part of an elaborate social media spoof perpetrated by a 23-year old Melbourne, Australia man named Tin Le or Thien Nguyen — if you believe someone else who later claimed to have known “Phuc” from his school days.

Phonetic political correctness.

facebook-needs-why-you-lying-button-ecardThe hoaxer explained that he’d created the phonetically rude ‘Phuc Dat Bich’ name hoax to fool the media and to tweak Facebook over its real names policy. “I’ve never believed it’s necessary for it to be mandatory to have your entire name to be published on social media,” he expounded. “People should be free to use any name they desire. Facebook needs to understand that it is utterly impossible to legitimise a place where there will always be pranksters and tricksters,” he added.

B.S. on the Web.

So no surprise. The web is full of hoaxes, urban legends, falsely attributed quotes, netlore and just pasture-variety bull. A healthy dose of skepticism ought to be axiomatic, especially when it comes to much of what ‘goes viral’ on the Internet.

Just this week there was another bogus story, ‘World’s biggest’ drug kingpin El Chapo declares war on ISIS. More bull, this time from a misunderstood satirist. Memo to literary device humorist — it’s not satire if no one gets it. But also blame the 24/7 all-news-all-the-time media that irresponsibly runs stories without bothering to fact-check. Chapo didn’t threaten “true terror” in an encrypted email to Isis leaders. It was another hoax.

Not long ago, one pundit contended the Internet had birthed a “Golden Age of Fact-Checking.” I’m still not buying what she was selling. Fact-checking when it happens is mostly of the shamelessly belated kind or of the indefinitely postponed variety. See Truth, Lies, and the Internet – The Atlantic

https://upload.wikimedia.org/wikipedia/commons/thumb/b/b1/Bsahead.png/240px-Bsahead.pngInternet B.S. is particularly endemic in email and social media chain letters. Last month, somebody emailed me an essay falsely attributed to football coach turned sports commentator Lou Holtz. The “Two Americas” essay I received was entitled “Lou Holtz Nails It!” — although, he didn’t. It was authored by someone else a lot less famous than Lou.

Fortunately, with year-end upon us and lawyers scrambling to complete last-minute calendar CLE, now’s as good a time as any to turn away from lies, nonsense and cow pie capers. I’m happy to provide instead the latest FREE CLE updates.

And while “CLE as practiced has little or no verifiable impact on attorney competence or public protection” — comply we must.

The usual disclaimers about jurisdictional creditworthiness, continued availability, and content quality apply.


Legal Advantage

Best Practices in Biotechnology Prior Art Searching

December 14, 2015 – 12 PM EST

Duration: 1 Hour

Cost: Free

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Best Practices in Electrical Engineering Prior Art Searching

December 18, 2015 – 12 PM EST

Duration: 1 Hour

Cost: Free

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Best Practices in Mechanical Engineering Prior Art Searching

December 23, 2015 – 12 PM EST

Duration: 1 Hour

Cost: Free

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Best Practices in Patent Illustration

January 05, 2016 – 12 PM EST

Duration: 1 Hour

Cost: Free

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January 12, 2016 – 12 PM EST

Duration: 1 Hour

Cost: Free


Lawyers Mutual Insurance Company

Must See FREE CLE/
E-Discovery: Leveling the Playing Field

On Demand Webinar

Click here for 1.0 hrs. of general CLE credit.


Clifford Law Offices – Continuing Legal Education Program

2016 Webinar: “The Ethics of Pre-Trial and Trial Work”

Date: Thursday, Feb. 18, 2016

Time: 2:30-4:30 p.m.

 Practising Law Institute (PLI)
 CT Corporation
January 12th 2016 1:00pm EDT
 National Consumer Law Center (NCLC)

 On Demand Archive

Don’t Settle for Less: Tips for Negotiating Settlement Agreements

The Color of Debt: Racial Disparity in Debt Collection Lawsuits

Representing Clients in Guardianship Actions: Winning the Case for Supported Decision Making

Discovery: Getting the Information You Need


Bloomberg BNA

Big Law Business: Lawyer Mobility – Ethical Issues Arising from Lateral Hires, Partner Withdrawals and Law Firm Dissolutions

Thursday, December 17, 2015
1:00 PM to 2:30 PM ET

Attorney Misconduct: Causes, Consequences, and How to Avoid It

Thursday, January 7, 2016
1:00 PM to 2:30 PM ET


American Society of Law, Medicine and Ethics (ASLME)

The Network for Public Health Law

On Demand Webinars – Various

Motorcycle Helmet Laws: Innovative Approaches to Reducing Injury


Photo Credits: Morguefile.com; KC vs Pho, by Longster 47 at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License;”BS ahead, check for references” via Wikimedia Commons File:Bsahead.svg.


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