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    May
    01
    2016

    Lawyer Discipline

    These summaries are provided by the Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court. The OLR assists the court in supervising the practice of law and protecting the public from misconduct by lawyers. The OLR has offices at 110 E. Main St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. The full text of items summarized is at www.wicourts.gov/olr.


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    Public Discipline

    Disciplinary Proceedings Against John O. Waters

    In a March 9, 2016, decision, the Wisconsin Supreme Court suspended the law license of John O. Waters for three years, effective the date of the order. Waters formerly practiced in Grand Rapids, Mich. The discipline was reciprocal to a three-year suspension imposed in Michigan in June 2013. Waters was further ordered to pay the cost of the disciplinary proceeding and to comply with a Michigan restitution order related to his professional misconduct. Disciplinary Proceedings Against Waters, 2016 WI 15. The Michigan suspension was based on Waters’ conviction for felony drug offenses, several acts of misconduct relating to the representation of clients, and his failure to cooperate with the Michigan lawyer regulators’ investigation into his conduct.

    Reinstatement Petition of Walter W. Stern III

    On Feb. 4, 2016, the supreme court reinstated with conditions the law license of Walter W. Stern III, Kenosha, and ordered Stern to pay one-half the cost of the reinstatement proceeding. Disciplinary Proceedings Against Stern, 2016 WI 6.

    In 2013, the supreme court suspended Stern’s law license for two years, after he pleaded no contest to misconduct that earlier led to his federal conviction of conspiring to commit money laundering and a federal prison term of one year and one day. Disciplinary Proceedings Against Stern, 2013 WI 46, 347 Wis. 2d 552, 830 N.W. 2d 674. In July 2013, the U.S. Court of Appeals for the Seventh Circuit reversed Stern’s conviction. Stern was released from prison after having served approximately six months of his sentence. Stern later pleaded guilty to a federal misdemeanor offense of contempt of court that resulted in no further prison time.

    The supreme court found that Stern had established by clear, satisfactory, and convincing evidence that he had satisfied all the criteria necessary for reinstatement, and it directed Stern to transmit a $585.25 surplus that had remained in his trust account at the time of his suspension to the unclaimed property unit of the Wisconsin Department of Revenue within 30 days after the date of the order.     

    Disciplinary Proceedings Against Patrick A. Callahan

    On Feb. 10, 2016, the supreme court suspended the law license of Patrick A. Callahan, Milwaukee, for 60 days. Disciplinary Proceedings Against Callahan, 2016 WI 8. The discipline was imposed pursuant to a stipulation between Callahan and the Office of Lawyer Regulation (OLR), and therefore no costs were imposed.

    In July 2012, Callahan filed a time-barred discrimination complaint against a client’s former employer with the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development (DWD). The statutory deadline to file the complaint was several months earlier. After dismissal of the complaint, Callahan appealed and then made an offer to the client’s former employer to settle the case, even though Callahan had no authority from the client to do so. The attorney for the former employer accepted the offer and Callahan represented to the ERD that the parties had settled the matter and that the settlement paperwork would be forthcoming. After 19 months passed, the ERD affirmed the earlier decision to dismiss the discrimination claim as untimely filed and noted that Callahan had presented no valid excuse for the delay.

    In July 2012, Callahan also filed a civil suit against the client’s former employer in circuit court. In February 2013, approximately six weeks before the discovery deadline set by the court, Callahan sent a letter to the court stating that he had failed to perform all necessary discovery; failed to communicate with the client about the status of the claim; failed to inform the client of the scheduling of her deposition; advised opposing counsel that his client would accept a settlement when he did not have settlement authority; and failed to timely file the client’s discrimination claim with the DWD-ERD and failed to report that to his client.

    The circuit court granted Callahan’s request to withdraw and dismissed the case without prejudice. In April and May 2013, the OLR sent letters to Callahan seeking information relating to his representation of the client, but Callahan failed to respond.

    Callahan violated the following rules: SCR 20:1.3, by failing to perform the necessary work to advance the client’s circuit court suit and by failing to properly advance the client’s DWD-ERD discrimination claim; SCR 20:1.2(a), by advancing a settlement offer that the client had not authorized; SCR 20:8.4(c), by representing to opposing counsel that he had settlement authority; SCR 20:1.4(a)(3) and (4), by failing to keep the client apprised as to the status of both the DWD-ERD claim and the circuit court case; and SCR 22.03(2) and (6), by failing to provide timely written responses to the OLR’s investigative letters.

    Callahan had no prior discipline.

    Disciplinary Proceedings Against Stuart R. Roitburd

    In a Feb. 26, 2016, decision, the supreme court suspended the law license of Stuart R. Roitburd, Glendale, for 60 days, effective April 26, 2016. Disciplinary Proceedings Against Roitburd, 2016 WI 12. The OLR’s complaint alleged three counts of professional misconduct in connection with Roitburd’s work as the personal representative of his mother’s estate.

    Roitburd did not file an answer to the disciplinary complaint, did not appear at a hearing on the OLR’s default motion, and was ultimately found in default. The OLR recommended, and the supreme court referee agreed, that Roitburd’s license should be suspended for two years. The court disagreed, instead suspending Roitburd for 60 days, ordering him to demonstrate he has satisfied a judgment entered against him regarding his mother’s estate, and further ordering him to pay the $1,120.29 cost of the proceeding.

    In April 2011, in connection with the final accounting of Roitburd’s mother’s estate, the circuit court ordered Roitburd to make payments to certain creditors by June 2011. Roitburd failed to do so. The circuit court granted a lengthy adjournment to provide additional time, but Roitburd failed to appear at the adjourned hearing date. He later failed to appear at another hearing.

    In March 2012, the circuit court removed Roitburd as personal representative and issued a bench warrant for him. He was arrested and later released on a signature bond. The successor personal representative testified that certain assets were missing from the estate and Roitburd had canceled five meetings scheduled to discuss the situation. Roitburd stated he would return unaccounted-for assets by Dec. 25, 2012, but he failed to do so. The circuit court ordered Roitburd to repay $43,369.74 to the estate by mid-March 2013, which he also failed to do. The circuit court then entered an order and judgment finding Roitburd liable to his mother’s estate for that amount, which judgment remains unsatisfied.

    Roitburd willfully failed to cooperate with the OLR’s investigation, resulting in a temporary suspension pursuant to SCR 22.03(4).

    The supreme court concluded that Roitburd knowingly disobeyed obligations under the rules of a tribunal, in violation of SCR 20:3.4(c); engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c); and failed to cooperate with the OLR’s investigation, in violation of SCR 22.03(2) and (6), enforced by SCR 20:8.4(h).

    Roitburd had no prior discipline.

    Disciplinary Proceedings Against Thor Templin

    The supreme court suspended the law license of Thor Templin, Milwaukee, for six months, effective May 3, 2016. The court also ordered Templin to pay the $7,564.50 cost of the disciplinary proceeding, pay restitution totaling $500 to two former clients, and complete six hours of continuing legal education concentrating on civil procedure or appellate practice as a condition to reinstatement. Disciplinary Proceedings Against Templin, 2016 WI 18.

    Templin engaged in 12 counts of professional misconduct involving four clients. In the first matter, Templin sought to set aside a three-year-old divorce judgment, even though Wisconsin law requires that such motions be filed within one year after the judgment. The circuit court found Templin’s efforts frivolous and ordered Templin and the client to pay $6,526.22 in attorney fees to the opposing party. Thereafter, Templin refused to comply with the sanction order and filed a bankruptcy action on behalf of the client seeking to discharge Templin’s own sanction obligations. Templin also failed to cooperate with the OLR’s investigation. Templin violated SCR 20:1.1, SCR 20:3.1(a)(1) and (3), SCR 20:3.4(c), and SCR 22.03(2), enforceable under SCR 20:8.4(h).

    In a second matter, Templin agreed to represent a client seeking supreme court review of a court of appeals decision, which affirmed a circuit court order terminating the client’s parental rights. A petition for review must be filed within 30 days after any court of appeals decision. Templin accepted the case on the last day on which the petition for review could be filed and failed to inform the client that nothing further could be done on the case. Thereafter, Templin failed to respond to the client’s multiple requests for information about the case. Templin violated SCR 20:1.4(a)(4) and (b) and SCR 20:1.5(a).

    In a third matter, Templin represented a client in a divorce matter. On three separate occasions, Templin attempted to file the necessary legal papers to commence the divorce action. In each instance, Templin failed to comply with local court rules and the clerk of court rejected Templin’s filings. Templin’s failure to properly prepare and file a petition for divorce violated SCR 20:1.1.

    In a fourth matter, Templin represented a veteran who had been sued by a hospital for unpaid medical bills. Templin agreed to file a third-party complaint against the Veterans Administration (VA). Although Templin filed a third-party complaint against the VA, he never served the complaint on the VA. Templin also failed to identify any witnesses and otherwise comply with the circuit court’s scheduling order. After the hospital filed a motion for summary judgment, Templin did not file any responsive pleadings nor did he communicate to the client regarding potential legal options. After entry of summary judgment, the veteran filed for bankruptcy. Templin violated SCR 20:1.1, SCR 20:1.3, and SCR 20:1.4(a)(3).

    Templin had one prior private reprimand, in 2011.


    Private Discipline

    The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, a summary of facts and professional conduct rule violations in matters in which the OLR imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys. The summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.

    Dealing with Unrepresented Person

    Violation of SCR 20:4.3 A lawyer was a defendant in a legal malpractice action. After the lawyer’s former client commenced the legal malpractice action, the lawyer and the former client communicated with each other regarding the possibility of settling the case. The former client’s father told the lawyer that he would deliver the proposed settlement papers to the former client, who was in prison at the time, and if the former client agreed to the offer, then the former client would sign the documents. The father went to the prison but was denied visitation because the former client was being transferred to another prison.

    The father went to the lawyer’s office and accepted a settlement in the amount of $10,000, pursuant to a written power of attorney executed by the former client. The father, pursuant to the power of attorney, signed a general release and stipulation agreeing that the legal malpractice action be dismissed with prejudice. Thereafter, a circuit court judge dismissed the case.

    The lawyer had told the father that the power of attorney clearly stated that the father had full power to settle the lawsuit and then advised the father how to sign the settlement papers pursuant to the power of attorney. The father was not represented by counsel.

    By confirming to the father, who was unrepresented, that the power of attorney clearly stated that the father had full power to settle the lawsuit, and by advising the father in what manner to sign the release and stipulation under the power of attorney, the lawyer violated SCR 20:4.3.

    The lawyer had two prior public reprimands and one short-term suspension.

    Failure to Communicate; Failure to Enter Into Written Fee Agreements; Failure to Hold Advanced-fee Payments in Trust; Failure to Provide Final Accounting and Final Notice of Binding Fee Arbitration

    Violations of SCR 20:1.4(a)(3), SCR 20:1.5(b)(1) and (2), and SCR 20:1.15(b) and (b)(4m)b.

    A lawyer represented a criminal defendant in four matters, for which the lawyer collected separate advanced payments of fees, totaling $10,000.

    Upon conclusion of the first representation, and despite having deposited the client’s $1,500 into the lawyer’s business account, the lawyer failed to deliver to the client a final accounting and final notice of binding fee arbitration, in violation of SCR 20:1.15(b)(4m)b.

    The lawyer then accepted three separate advanced-fee payments (all in excess of $1,000) for three separate representations. The lawyer, in each instance, violated SCR 20:1.5(b)(1) and (2), by failing to enter into a written fee agreement communicating the required information; and SCR 20:1.15(b), by depositing each payment into the lawyer’s business account, without acting in a manner indicating an intention to use the alternative advanced-fee-placement measures stated in SCR 20:1.15(b)(4m), permitting deposit of an advanced fee into an attorney’s nontrust business account.

    The lawyer also failed to inform the client about two separate court of appeals’ decisions. The lawyer, in each instance, violated SCR 20:1.4(a)(3).

    The lawyer had no prior discipline.

    Lack of Diligence; Failure to Refund Unearned Fees; Failure to Communicate; Failure to Comply with Discovery; Failure to Obey ALJ Letter Orders

    Violations of SCR 20:1.3, SCR 20:1.4(a)(3) and (4), SCR 20:1.16(d), and SCR 20:3.4(c) and (d)

    A lawyer requested a hearing to review a previous order in a custody matter. The court ordered briefs. In violation of SCR 20:1.3, the lawyer failed to file a brief or request an extension of time, resulting in the court denying the request for a hearing.

    The lawyer agreed to refund a portion of the advanced fee, but failed to do so for more than one year, in violation of SCR 20:1.16(d), and did so only in connection with the imposition of discipline.

    In another matter, the lawyer represented a client on separate complaints of discrimination and wrongful termination filed with the Wisconsin Department of Workforce Development Equal Rights Division (ERD). The ERD only found probable cause to believe the employer engaged in, or permitted, sexual harassment (as alleged in the discrimination complaint). The lawyer agreed to pursue a wrongful-termination civil suit and collected $300 for the filing fee.

    Regarding the ERD discrimination claim, the lawyer violated SCR 20:3.4(d) by failing to respond to discovery requests and SCR 20:1.4(a)(3) by failing to inform the client of the discovery requests. Opposing counsel then moved to dismiss the discrimination complaint. The ALJ issued two letter orders. The lawyer did not respond to either order, in violation of SCR 20:3.4(c). The lawyer also failed to respond to the client’s telephone inquiries, in violation of SCR 20:1.4(a)(4).  The civil suit was never filed, and in violation of SCR 20:1.16(d), the lawyer did not return the filing fee for more than six months and did so only in connection with the imposition of discipline.

    The lawyer had no prior discipline.

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    A lawyer was convicted in March 2015 of misdemeanor second-offense operating a vehicle while intoxicated (OWI). The lawyer was the subject of a traffic stop after law enforcement officers observed the lawyer’s vehicle deviating from its lane of travel so much that it nearly struck a median wall. The lawyer exhibited signs of intoxication, had poor balance while participating in field sobriety tests, and had a blood-alcohol content above the legal limit.

    The lawyer was sentenced to 45 days in the Milwaukee County House of Correction with Huber privileges, driver’s license revocation for 12 months, and ignition interlock device (IID) installation for 12 months. The lawyer also was ordered to undergo an alcohol assessment and pay a fine and all costs, penalties, and surcharges.

    By engaging in conduct leading to a conviction of misdemeanor second-offense OWI, the lawyer violated SCR 20:8.4(b).

    The lawyer had one prior private reprimand.

    Failure to Prepare Fee Agreement; Trust Account Violation; Failure to Surrender File; Failure to Cooperate

    Violations of SCR 20:1.5(b)(1) and (2), SCR 20:15(b)(4), SCR 20:1.16(d), and SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h)

    After being convicted of a crime, the defendant asked a lawyer to recommend appellate options and paid the lawyer a nonrefundable fee of $2,500. The lawyer failed to prepare a written fee agreement and placed the entire fee into his business account and not a client trust account. After preparing a detailed analysis of appellate options, the lawyer closed his law practice. The client filed a grievance against the attorney seeking unearned fees. The lawyer failed to respond to the OLR’s inquiries.

    By accepting an advanced fee in excess of $1,000 without a written fee agreement, the lawyer violated SCR 20:1.5(b)(1) and (2). By failing to deposit the advanced fee of $2,500 into his client trust account, the lawyer violated SCR 20:1.15(b)(4). By failing to respond to the OLR’s inquiries, the lawyer violated SCR 22.03(2) and (6), as enforced via SCR 20:20:8.4(h).

    In a second matter, another client hired the lawyer to appeal a criminal conviction and sentence. The lawyer filed a successful appeal, and upon remand the circuit court reduced the sentence. After the lawyer withdrew from the representation, the client sought the return of his file. The lawyer did not respond to the requests for the file nor did the lawyer respond to the OLR’s inquiries. By failing to surrender the client’s file after multiple requests, the lawyer violated SCR 20:1.16(d). By failing to provide relevant information to the OLR as part of its investigation of the second grievance, the lawyer violated SCR 22.03(2) and (6), as enforced via SCR 20:20:8.4(h).

    The lawyer had one prior public reprimand and one prior suspension.

    Misrepresentation

    Violation of SCR 20:8.4(c)

    In 2014, a woman hired a lawyer to formulate an estate plan for her. While conducting an inventory of the estate, the lawyer discovered that a number of the client’s real estate holdings had been transferred to her children by land contracts. Further investigation revealed that the children had self-drafted documents attempting to amend some of the financing terms of the land contracts, amendments that were agreed to by the client. The amended contracts or “Contracts for Deed” were on out-of-state forms, were not in recordable form, and did not reference the prior Wisconsin land contracts as required by Wisconsin law. The “Contracts for Deed” were dated July 1, 2010.

    At the client’s direction, the lawyer prepared documents to correct the July 1, 2010, “Contracts for Deed” and put them in both legal and recordable form. In preparing the documents, however, the lawyer backdated all the documents to July 1, 2010, and had the client and her two sons sign the documents, at which point the lawyer notarized the signatures on the respective documents, falsely asserting that the parties personally signed before him on July 1, 2010.

    The lawyer then arranged a meeting with the client’s daughter. The daughter refused to sign the contract amendments because of the incorrect date on the documents. The lawyer acknowledged his error in backdating the legal documents and notarizing the signatures. 

    Having backdated multiple real estate documents, by then notarizing signatures that misrepresented the date on which the documents were signed, the lawyer violated SCR 20:8.4(c), which states, “It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

    The lawyer had no prior discipline.

    Impartiality and Decorum of the Tribunal; Fairness to Opposing Party and Counsel

    Violations of SCR 20:3.5(b) and SCR 20:3.4(c)

    A lawyer represented a man in a divorce in which a guardian ad litem (GAL) was appointed for two minor children. The same day the GAL filed a brief in support of the mother’s motion to limit the father’s placement, the lawyer filed a response to the motion that included a request to replace the GAL.

    The day before the motion hearing, the lawyer signed a letter addressed to the family court commissioner (FCC) and two circuit court judges. The letter, which did not cite a case number, stated that the GAL had exhibited extreme animosity toward the lawyer’s firm, and requested that the court not appoint the GAL on any of his firm’s cases. Neither the GAL nor opposing counsel was sent a copy of the letter.

    The FCC denied the motion to disqualify the GAL and appointed a psychologist to conduct an investigation and prepare a placement report. The lawyer filed a motion for stay pending a de novo hearing, which the circuit court judge denied. A few days later, the lawyer sent an email to the appointed psychologist stating he had instructed his client to hold off communicating with the psychologist’s office until a final court decision later that month.

    By signing and submitting the letter concerning the GAL to the circuit court judges and the FCC, without copying the GAL or opposing counsel, the lawyer violated SCR 20:3.5(b). By instructing the client to delay communications with the psychologist’s office until after the de novo hearing, despite the FCC’s order and the circuit court’s refusal to stay the FCC’s order until the de novo hearing, the lawyer violated SCR 20:3.4(c).

    The lawyer had no prior discipline.

    Conflict of Interest

    Violations of SCR 20:1.7(a)(2) and 20:1.9(a)

    A lawyer represented a client in defending against a petition for permanent guardianship due to incompetency filed by the client’s daughter. Ultimately, the court appointed a guardian of the person for the client. The lawyer then ceased representing the client. Approximately two years later, the lawyer began representing the guardian of the client in a contested petition for protective placement of the client.

    During a hearing, the lawyer was informed about the conflict of interest. Subsequently, the lawyer, the guardian, and successor counsel for the guardian signed a stipulation for substitution of attorneys and the court ordered that successor counsel be substituted as attorney of record. In the end the court ordered protective placement for the client.

    By representing the guardian in a contested petition for protective placement of the client, when the lawyer formerly represented the client in defending against a petition for guardianship due to incompetency, the lawyer violated SCR 20:1.7(a)(2) and 20:1.9(a).

    The lawyer had two prior private reprimands.

    Lack of Competent and Diligent Representation; Failure to Provide a Written Fee Agreement; Failure to Hold Advanced Fees in Trust; Failure to Obey a Court Order

    Violations of SCR 1.1, SCR 1.3, SCR 1.5(b)(1) and (2), SCR 1.15(b)(4) and (d)(1), and SCR 3.4(c)

    The lawyer represented a client in a divorce. The lawyer placed an advanced fee in the business account but did not provide a written fee agreement or comply with the advanced-fee-placement alternative. The lawyer did not obtain discovery before trial. The lawyer filed the post-trial brief late.

    When the client failed to make an equalization payment, opposing counsel moved to have the client held in contempt of court. Despite 11 U.S.C. § 523(a)(15), the lawyer advised filing bankruptcy to stay the contempt proceeding. The lawyer did not appear at the contempt hearing.

    The lawyer failed to obey an order to disburse proceeds from the sale of a boat until payment was made a condition of the reprimand.

    By failing to provide a written fee agreement and communicate the purpose and effect of an advanced payment, the lawyer violated SCR 20:1.5(b)(1) and (2). By receiving advanced fees in the business account without complying with the advanced-fee-placement alternative, the lawyer violated SCR 20:1.15(b)(4). By failing to obtain discovery, failing to timely file the post-trial brief, and failing to appear at the contempt hearing, the lawyer violated SCR 20:1.1 and SCR 20:1.3.

    By erroneously advising the client that a bankruptcy would result in discharge of the equalization payment in the client’s divorce case and by assisting with the filing of the bankruptcy, the lawyer violated SCR 20:1.1.

    By failing to pay proceeds from the sale of a boat to the opposing party after having been ordered by the court to do so, the lawyer violated SCR 20:1.15(d)(1) and SCR 20:3.4(c).

    Payment of the boat sale proceeds was made a condition of this reprimand.

    The lawyer had no prior discipline.

    Criminal Act (OWI Second) Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    A lawyer was convicted in August 2015 of misdemeanor second-offense OWI.

    The lawyer was the subject of a June 2015 traffic stop after law enforcement officers observed the lawyer driving a vehicle without its headlights and taillights activated. The lawyer exhibited signs of intoxication, seemed to be impaired while participating in field sobriety tests, and had a blood-alcohol content above the legal limit. An operating with a prohibited alcohol concentration (PAC) (second offense) charge was dismissed on the prosecutor’s motion but read in at sentencing.

    The lawyer was sentenced to 10 days in jail with Huber privileges, driver’s license revocation for 13 months, and IID installation for 13 months. The lawyer also was ordered to undergo an alcohol assessment and pay a fine and costs.

    By engaging in conduct leading to a conviction of misdemeanor second-offense OWI, the lawyer violated SCR 20:8.4(b).

    The lawyer had no prior discipline.

    Failure to Deposit Advanced Fees in Trust; Failure to Refund Unearned Advanced Fees

    Violations of SCR 20:1.15(b)(4) and SCR 20:1.16(d)

    A lawyer engaged in misconduct in two matters.

    In the first matter, the lawyer agreed to represent a criminal defendant in a pending case and accepted $4,800 in cash toward a total flat fee of $10,000. The lawyer failed to deposit the funds into any account and to safeguard them. After the lawyer withdrew from the representation and another firm took over the matter, successor counsel credited the client for the $4,800 that had earlier been paid to the lawyer but not held in trust. By failing to deposit the $4,800 advanced-fee payment into the lawyer’s trust account, the lawyer violated SCR 20:1.15(b)(4).

    In the second matter, the lawyer represented a client in three pending criminal cases. In addition to a $5,000 flat fee, the lawyer accepted $250 toward a $5,000 trial fee. The client entered into a plea agreement. At sentencing, the client signed the attorney’s fee agreement, which absolved the client of any responsibility for any portion of the $5,000 trial fee. Having accepted the $250 payment (toward the additional $5,000 trial fee) from the client and by failing to refund the unearned advance payment until approximately six months after the plea hearing and only when requested by the client, the lawyer violated SCR 20:1.16(d).

    The lawyer had no prior discipline.




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