Posts Tagged ‘ABA’

https://cdn.morguefile.com/imageData/public/files/g/GromovatayaIrina/03/l/1458732114nc9vo.jpgIf the American Bar Association (ABA) is underwriting something — America’s lawyers be wary. This is the organization led a few years ago by an oblivious President with the stones to blame students for opting for law school in a declining economy — this while the selfsame was roundly criticized for its own considerable regulatory failings.

And despite having done more than its share to create the lawyer glut, the ABA stands around even now, in the words of one critic, “limp-wristed” while law schools race to the bottom repeatedly lowering LSAT admission scores trawling for matriculants as enrollments decline. Any wonder another commentator declares, “The ABA can’t be trusted”?

More recently, politically correct ABA do-gooders have recommended bar associations adopt a “speech code” for lawyers — the violation of which means discipline.

And just days ago, the ABA House of Delegates adopted a new model rule concerning continuing legal education, recommending in part that state bars uniformly impose a 15-hour minimum continuing legal education requirement per jurisdictional reporting period. As usual, the ABA trots out the self-serving claptrap offered without a scintilla of empirical proof that “MCLE continues to play a crucial role in maintaining public confidence in the legal profession and the rule of law and promoting the fair administration of justice.” Pretentious pretextual poppycock notwithstanding, left out as usual is the truth that MCLE mostly serves to line bar association coffers nationwide. Ka-ching!

Such was the context for the announcement of a pro bono survey project launched by the ABA last year. It was just rolled out in Arizona.

On its website, the ABA explains it offered “its pro bono survey instrument, free of charge, to states interested in studying various aspects of the profession’s pro bono culture.” One can only guess what that means although after welcoming survey-takers, the questionnaire reveals its intentions:

“You have been asked to participate in this survey so that we may gain a better understanding of legal services provided to low and moderate income people in your state. This is a nationwide effort to quantify and recognize the pro bono work provided by attorneys, as well as to understand the factors that encourage or discourage pro bono service. We are interested in the perspectives of attorneys who have provided such services as well as attorneys who have not.”

What the “better understanding” leads to, however, is another question. Otherwise, to the frequently asked question, “What are the states expected to do with the results?” — it answers:

The ABA encourages the state leadership teams to review the findings and collaborate to generate state program and policy recommendations. In the summer and fall of 2017, the ABA will facilitate conference calls with each of the participating states to review the findings and discuss recommendations.”

https://cdn.morguefile.com/imageData/public/files/j/Jamierodriguez37/03/l/1426633399eunhs.jpg Carrots turned cudgels.

Since I ignored the first email solicitation from the Arizona Bar CEO to take the survey, last week I received a reminder to “take a few minutes” to participate in “this worthy effort” along with “an incentive to complete the survey.” No further reminders necessary for this resolute non-participant.

Based on the time it took Nebraska lawyer survey participants to complete the survey, it’s anticipated it will take lawyers more than “a few minutes” since Nebraska participants took an average of 32 minutes to finish it. And ostensibly an anonymous survey, that anonymity flies out the window if Arizona Bar members elect the Bar’s incentive to “be included in a drawing for a $150.00 gift card.”

In 2014, the State Bar of Arizona dangled a $250 Visa gift card as the sole prize for contestants vying to create a 15-second Instagram video with the mandatory phrase, “Finish the ballot. Vote for the judges!” To the best of my knowledge, the Bar never disclosed the winner or the wining video most likely because of embarrassing sparse participation. More recently, the Bar offered another gift card incentive to induce participation in its triennial lawyer compensation survey.

Compulsory lawyer servitude.

Ever the jaundiced one, I suspect these surveys will be used to advance program and policy goals of those clamoring for mandatory pro bono. Their salivary glands have never stopped drooling ever since New York became the first state to mandate pro bono work.

In New York, the forced pro bono rule was inflicted on law school graduates as a condition for bar admission. New York bar applicants must perform 50 hours of pro bono work before they can be admitted and some day hope to earn a living as lawyers.

Unlike other professionals, lawyers inexplicably remain the sole special snowflakes compelled to belong to their trade associations as conditions to earn a living. And soon enough lawyers may be the solitary profession whose services should also be compulsorily given away.


Credits: Morguefile.com, no attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license.

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I recently attended a seminar where a lawyer-lobbyist opined that non-lawyers should not be lobbyists. Influence peddling, it seems, should be the sole province of lawyers. Not that much explanation was given. Perhaps none was needed. After all, most in attendance were lawyers. Somewhere in the lawyer DNA is genetically grafted an exaggerated belief that “Anything you can do I can do better; I can do anything better than you.” 

Not that it’s true — especially in lobbying where cunning, connections, comprehension and experience count as much if not more than a legal education. Nevertheless, those advocating the supposed advantages of lawyer-lobbyists over nonlawyer-lobbyists also sniff that “Nonlawyer lobbyists lack a system of obligatory ethics norms akin to the Rules of Professional Conduct.” Apparently it matters little that such self-serving smugness is undercut by the likes of former lawyer-lobbyist Jack Abramoff.

File:Theodoor Rombouts - Christ Driving the Money-changers from the Temple.jpg

Bottom line, for lawyers fiercely wedded to the medieval guild’s monopoly-has-its-privileges — free market competition sucks. Or to Ben Franklin’s “nothing can be said to be certain, except death and taxes” — add with certitude the protectionist instincts of lawyers.

The ABA takes the lead.

Under the sheltering cover of “ponderous, backward looking, and self-preserving” bar associations, licensure was the sine qua non to supposedly protect “the uninformed public against incompetence or dishonesty.” Or at least that’s what Professor Walter Gelhorn said in “The Abuse of Occupational Licensing”  where more significantly, he also pointed out how such pretextual public protection always has “the consequence that members of the licensed group become protected against competition from newcomers.”

Ah, the joys of monopoly or as Professor Gerard Clark explains in “Monopoly Power in Defense of the Status Quo: A Critique of the ABA’s Role in the Regulation of the American Legal Profession,”

“Since its founding in 1878, the American Bar Association (ABA) has served the legal profession in two principal ways: by limiting membership in the profession, and by protecting its prerogatives. It has done so by: advocating a system of licensing backed by unauthorized practice rules; supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; providing a continuous public relations campaign to put the bar in a favorable light; and supporting the growth of state bar associations that press for these prerogatives at the state and local level. The result is an outsized and comfortable profession that is costly, and inefficient. By seizing the initiative in the creation of a trade association, which simply declared itself the official voice of the bar over all aspects of the profession (although less than one-third of the 1.2 million lawyers in the United States are ABA members), and then convincing state bar authorities to accept its judgments, the ABA accomplished its goal of self-regulation through the use of monopoly power.”


Lawyer regulation to protect the public sounds good. But by regulating who can practice law, lawyers also maintain a monopoly on who provides legal services. The legal establishment accomplishes this by regulating the unauthorized practice of law (UPL) either by statute or court rule. But the rub is that bar association regulators have an inherent conflict of interest. On the one hand, they’re supposed to protect and serve the public by regulating lawyers. But at the same time, they function like trade associations promoting the legal profession’s common interests.

https://i1.wp.com/cdn.morguefile.com/imageData/public/files/m/meowzeroni/04/l/1397514359cws5o.jpgThese two purposes conflict because lawyers and the public often have different interests. When these interests conflict—such as when out-of-state lawyers or lower-cost legal services wish to compete with lawyers — lawyers use their regulatory powers to stop that competition.

Last year, for example, in the aftermath of the U.S. Supreme Court’s ruling against a protectionist North Carolina Dental Board, the State Bar of North Carolina settled its suit against LegalZoom. LegalZoom is now free to offer online document services and prepaid legal services plans to North Carolinians.

Here in Arizona, examples of lawyer interests trumping public interests include the Arizona State Bar’s efforts to stop realtors in the 1960s, legal document preparers in the 1990s, and out-of-state lawyers in the 2000s from offering services in Arizona.

When it comes to access to justice, those at the temple precincts mean access to just-us.


Credits: The governors of the guild of St. Luke, Haarlem, 1675 by Jan de Bray, Wikimedia Commons, public domain; Theodoor Rombouts, Christ Driving the Money-changers from the Temple, Wikimedia Commons, public domain; other photos via Morguefile.com, no attribution required.

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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.


Photo Credits: All photos via morguefile.com

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Crosslegged man drinking mug of coffeeReinvented journalist turned healthcare worker Edward Barrera wants to recreate himself — again. This time it’s via nascent fabulations of attending law school.

He said so in Southern California’s Pasadena Star-News, a newspaper not on my usual reading menu. But thanks to Internet aggregatorYahoo! News, I chanced on Barrera’s fatuously entitled essay, “Law school and combat.”

I’m still holding my nose from his brain infarctions, especially talk about “combat,” as though the law was bereft of combatants.

After reading, I was compelled to comment here and on his blog.

Man in a suit with boxing glovesBarrera wants to join in on the so-called “fun” he thinks a lawyer friend is having. By becoming a practicing lawyer, he imagines he’ll re-experience“the thrill of combat” he once got as a journalist.

Presumably, he’s no callow youth — despite the ‘visions of sugar plums dancing in his head.’

Yeats wrote, “The best lack all conviction, while the worst are full of passionate intensity.” So against my better judgment, I find myself rescinding an earlier vow to stop weighing in on law schools and their unconscionable hosing of students and graduates.

I do so perhaps, less from Barrera’s delusions or his invocation of the overworked oft ill-used Shakespearean quotation, “The first thing we do, let’s kill all the lawyers.” (To his inestimable credit, he pointed out the quote is usually out of context and misinterpreted).


More likely, I’m posting because I contemporaneously read one more law school dean’s self-interested prescription on fixing law schools and by extension — the 21st century legal profession.

File:Noaa-walrus22.jpgThis time, it was James Huffman, dean emeritus at Lewis & Clark Law School, who at least courageously confirmed the identity of the 800-kg. poop-making producer in the punch bowl — the American Bar Association (ABA).

business,business metaphors,businessmen,kneeling,males,men,metaphors,persons,pray,prayers,praying,prays,religions,worshippers,worshipping

The self-interested stakeholders inside law school academia are always too quick to offer self-serving solutions that safeguard sinecures, preserve privileges, and bless all their benefices . . . forever and ever, Amen.

But in his Wall Street Journal epistle, Perverse Incentives of the Lawyers Guild, Dean Huffman did at least state the obvious: “The ABA should start by looking within: The organization is a major source of the problem. Those large law-school faculties with some of the highest salaries in the academy, the palatial facilities, a persistent emphasis on theory instead of practical-skills training, and a limited reliance on online instruction have all been encouraged, if not mandated, by ABA regulations and the accreditation process.

“As often happens with regulatory systems, whether governmental or professional, the ABA accreditation process was long ago captured by legal education’s most influential stakeholders. ABA accreditation site-visit teams routinely include a dean, tenured classroom faculty, clinical faculty (historically untenured but now increasingly tenured, thanks to ABA requirements), a librarian, a university administrator and one judge or member of the practicing bar—but no students or consumers of legal services.”

Years ago, a high-end hotel executive described the problems cost-conscious innkeepers encountered from guests when they tried eliminating a room amenity — whether chocolate on a pillow or a packaged shower cap. “Once given, always expected,” he despairingly muttered.
Likewise, Dean Huffman’s proffered solution is no solution at all. It does nothing to disturb the entitled classes: avaricious law schools-turned-university-cash-cows; overpaid, under-worked tenured faculty; and high-level administrators ensconced in fancy facilities.

Dean Huffman instead looks elsewhere. He wants the ABA to release law schools from most current standards so that “the enormous intellectual power of their faculties” can sow innovations and make “a thousand flowers bloom.”

Oh, puh-leeze. This will merely wrest the keys away from the ones running the asylum and give them to the inmates instead.

Moreover, the dean emeritus forgets his own criticism of the insular ABA accreditation site-visit teams who do not deign to include “students or consumers of legal services” in their sacred process. Apparently, flowers never bloom from those infertile fields.

In sum, before considering law school, aspiring lawyers should first read Tucker Max’s list of “The 6 Wrong Reasons to Go to Law School” at the Huffington Post’s: “Why You Should Not Go to Law School.”

And deans, emeriti or not, should revisit law professor Brian Tamanaha’s apostasy, “How to Make Law School Affordable.

The former will be prudential simethicone for mental vapors. And the latter will provide the proper prescription, which is to inject overdue rationality into a madhouse.

Recast, then, the busted business model and reform the economics. Rein in the money. And align the incentives so that besides a commercial interest in their own prosperity, law schools finally have an accountable stake in the post-graduation success of their students.


Photo Credits: “Large walrus on the ice – Odobenus rosmarus divergens – contemplating the photographer – Alaska, Bering Sea,” by Captain Budd Christman, NOAA Corps, at Wikipedia Commons, public domain; Antelope Valley Poppy Preserve by Rennett Stowe at Flickr via Creative Commons-license requiring attribution; The Madhouse by Francisco Goya, at Wikipedia Commons, public domain.

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photoEarlier this month, I met a guy who on learning I was a lawyer couldn’t resist bragging about his daughter who’d recently been accepted to a so-called Tier 1 Law School.

Good for him. And good for her, I thought. If you got a kid determined to be a cliff-jumping lemming — it’s far better for the kid to be the lead lemming over the cliff — otherwise the view never changes until you fall off.

File:Gustave Dore Ancient Mariner Illustration.jpgAssuming the daughter parlays the prestige of a top tier law school diploma into a high-paying job, she’ll have a chance of mitigating her cetacean-sized six-figure law school tuition debt at least sometime during her lifetime. And she’ll need every ducat of that to also remove the albatross already around her neck because of her undergraduate school indebtedness.

Of course, all this comes against the backdrop of news yesterday disclosing that for the class of 2011, the ABA reported only 55 percent of law grads were able to find full-time law jobs.

But as the old saying goes, every dark cloud has a silver lining, which may simply mean that if you weren’t pouring espresso shots at Starbucks after graduation, it might’ve been worse for you working instead as an underpaid, overworked wage slave for some low-rent personal injury mill.

Worse yet, since these days an employer’s market means there’s apparently no limit to what firms will try to get away with, earlier this month there was a reported job opening with a Boston law firm that offered an annual salary of $10,000 per year. And even at those wages, such is the desperation that there was a queue of interested job-seekers!

Hold your water.

photoBut then there’s law school dean John O’Brien who from the rarefied perch of $867,000 per year to run the 4th Tier New England School of Law can look down and dispense faux beneficent benedictions on the underemployed, unemployed and in hock lawyer unwashed. What debt? ‘More is morer.’

And in an ironic twist, O’Brien also finds himself in charge of the ABA’s Council of the Section of Legal Education, assuredly a place where ‘everything’s gonna be O.K.” platitudes are conceived, gestated and born to be tenderly nurtured elsewhere, especially by self-interested U.S. law school deans.

Reacting negatively to Brian Tamanaha’s new book on failing law schools, O’Brien said, “Nobody feels good that tuitions have gone up. But the claim that a law degree is a bad investment doesn’t hold water.”  How unsurprising — yet another oblivious ABA mouthpiece practicing compassion from a distance.

And George Costanza says, “Jerry, just remember. It’s not a lie. . . if you believe it.



Credits: “Cliffs” by icelight at Flickr via Creative Commons-licensed content requiring attribution; Gustave_Dore_Ancient_Mariner_Illustration.jpg via Wikipedia Commons in the public domain; “Wat” by spitecho, nacho spiterson at Flickr via Creative Commons-licensed content requiring attribution.

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I wonder if the New York Times’ David Segal will ever weary of taking down law schools and in particular, the American Bar Association (ABA). So wedded to the status quo are the legal guild’s stakeholders, that despite all of Segal’s excellent exposés, nothing’s going to change until either market forces discipline the industry and force some law schools to go belly up or the feds step in again to finally break up the cartel.

For now, however, it’s like the old joke my late father-in-law liked to tell about “Gettin’ the Mule’s Attention.” You have to first hit it over the head with a 2 x 4.

The Feds did it once before when under a 1996 antitrust consent decree, the ABA agreed to stop ginning the accreditation process, including helping to fix law school faculty and administration compensation. The Justice Department took out the 2 x 4 again in 2006 and forced the ABA to acknowledge Antitrust Consent Decree violations. The ABA admitted to violating the Decree’s framework of “structural reforms and compliance obligations” and agreed to pay $185,000 in fees and costs incurred by the Justice Department during its investigation.

Nevertheless like Sisyphus, Segal keeps pushing the same boulder up the mountain. This morning it was For Law Schools, a Price to Play the A.B.A.’s Way.”

Like all his other highly critical reports on law schools and the ABA, e.g., “Law School Economics – Job Market Weakens, Tuition Rises” and “Is Law School a Losing Game? and “What They Don’t Teach Law Students: Lawyering,” this one also pulled no punches.

However, the money quote in today’s story about how ABA law school accreditation requirements drive up tuition costs comes from UNLV Boyd Law School’s Professor Nancy Rapoport, author of Eating Our Cake and Having It, Too: Why Real Change is so Difficult in Law Schools.” She tells Segal, “You’ve got a lot of happy law professors, who don’t want to change anything.”

photoBut we all knew that. Mules left alone to laze about and graze all day stay pretty happy, too.
Photo Credit: “Mules Grazing near Grand Coulee” by Jim Kenyon jimkenyon123 at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution and share alike distribution.

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“Being thrown under the bus” is yet another overworked idiomatic metaphor that’s now become cliché. So since I practice in two predominantly desert jurisdictions, I’m going to suggest something different for maltreating the unoffending who are not deserving of such treatment.

Thrown into the cacti.

File:Cactus1web.jpgRather than thrown under the bus, law students are being thrown into the cacti by law schools and by the tail they wag, the ABA.

But there’s a positive. It’s good preparatory experience for what comes later when they get licensed and have to deal with their prickly state bars.

Staci Zaretsky reports at “Above the Law about the ABA’s cactus-throwing. It’s in the context of Senator Chuck Grassley’s dissatisfied take on the ABA’s response from now ex-president Steven Zack to the senator’s letter to the ABA about law school graduate post employment numbers and student loan default rates. See “Not So Fast, ABA — Chuck Grassley Isn’t Letting You Off the Hookand Senator joins debate over law schools’ graduate employment data.”

Sen. Chuck Grassley (R) Iowa

So the unimpressed senator fired off an August 8, 2011 follow-up letter to the ABA with a list of 10 questions to help him better understand the “ABA’s regulation of law schools, law student debt, and law school accreditation.”

The senator’s letter runs four pages but the highlights include pointed queries concerning the lousy job market for law graduates and his concern “that graduates will have difficulty paying off their student loans.” And parenthetically, he also wants to know how the ABA plans to address the problem so as to “reduce the taxpayer dollars at risk.” Read the senator’s letter to the ABA here.

Young and dumb.

It’s also clear the senator doesn’t buy Zack’s inferentially blaming the students for being young and dumb. Zack said as much when he wrote in his July 20, 2011 reply letter that “Much of this issue revolves around students making informed, thoughtful choices.”

However, since so many of the students have obviously made the uninformed and thoughtless choice of enrolling in law school, then it’s caveat emptor and tough tomatoes, baby!

Is it any wonder that so many law grads have concluded that “Law schools award a degree of “BS” and that there was a “Class action filed against a law school”?

But then law students should get used to lip service, to taking blame, and to being subordinated to more important interests. After all, this is what they’ll get from their state bars when they become lawyers. See, for example, “That time of year again. . .rendering to Caesar his annual bar dues,” and “AZ Bar drafts up 5 year vision but misses the mark” and “Why bar presidents are like beauty contestants.”

Conflict of interest?

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Senator Grassley also thinks the purported “diversity” of the ABA’s law school accreditation committees is too heavily weighted toward stakeholding legal academics and University Presidents and Vice Presidents who make up almost half or more of the total membership of those committees. He says this gives “the appearance of a conflict of interest in favor or (sic) accrediting more law schools to create more jobs in academia.” Ya think?

He also raises the concern over the lack of transparency involved when law students lose merit scholarships, something I previously blogged about at “More law school B.S. (“Bait and switch”) as bell curve means merit scholars lose.”

Additionally, the good senator, who is also the Ranking Member of the Committee on the Judiciary, wants to know what steps the ABA “has taken to strongly regulate the legal accreditation process.”

photoAnd specifically going to the heart of the post-graduation employment statistical baloney, on question #10, Senator Grassley asks, “The Department of Education’s policies for accreditation standards, which you have provided in attachment #3, specifically cite “job placement rates” as a standard by which to accredit institutions. Is it your opinion that this section of the statute grants the ABA the power to craft regulations which would consider “job placement rates” as a standard by which to determine accreditation of individual law schools?”


So as concerns the ABA, “Above the Law‘s“ Zaretsky mordantly opines how difficult it’s going to be for the ABA to provide the straight answers necessary to satisfy the inquiring solon. She writes “I imagine that Zack’s head is spinning as the ABA tries to find a way to craft answers to Grassley’s questions that don’t actually provide any answers. Because honestly, when your organization does a better job of serving the interests of law schools over law students and lawyers, you probably have to get more than a little creative.”

businessmen,head over heels,males,metaphors,people,persons,turning cartwheels

Zaretsky, though, has it wrong about the head spinning challenge facing Zack. He’s no longer the ABA Prez.

So if there’s gonna be any Linda Blair Head Spinning, it’s going to have to fall to the new guy, Wm. T. (Bill) Robinson III. And oh, since he just took over this month, he’d better limber up those neck muscles since the senator wants his 10 answers by August 22, 2011.


Photo Credits: “Baloney” by beanqueen.killer at Flickr

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