West Virginia Judiciary

Rules of Judicial Disciplinary Procedure | Rules 5-7.21

RULES OF JUDICIAL DISCIPLINARY PROCEDURE

Section III: Rules 5-7.21

5. Office of Disciplinary Counsel.
5.1. Appointment.
5.2. Removal.
5.3. Practice of law.
5.4. Authority.
5.5. Expenses.
5.6. Statistical reporting.
6. Referrals to the West Virginia Judicial and Lawyer Assistance Program.
6.1. Notification.
6.2. WVJLAP Compliance.
6.3. Authority.
6.4. Confidentiality.
6.5. Refusal to comply.
6.6. Failure of rehabilitation.
6.7. Evaluation expenses.
6.8. Proceedings and process.
6.9. Information provided to Disciplinary Authorities by the WVJLAP.
6.10. Period of limitation for filing information.
7. Mandatory continuing judicial education.
7.1. Program administration.
7.2. Course approval.
7.3. Credit hours.
7.4. Exemptions.
7.5. Disciplinary action.
7.6. Annual report.
7.7. Presumptively approved courses.
7.8. Obtaining course approval.
7.9. Standards of accreditation.
7.10. Revocation of accredited status.
7.11. Delayed accreditation.
7.12. Reimbursement of expenses.
7.13. Finality of decisions.
7.14. Minimum continuing judicial education requirements.
7.15. Reporting.
7.16. New judges.
7.17. Obtaining credits.
7.18. Retroactive credit.
7.19. Transfer of credit.
7.20. Noncompliance and sanctions.
7.21. Right to hearing.

Rule 5. Office of Disciplinary Counsel.

The Supreme Court of Appeals does hereby establish an Office of Disciplinary Counsel to prosecute violations of the Code of Judicial Conduct and the Rules of Professional Conduct. The Office of Disciplinary Counsel shall consist of separate Lawyer Disciplinary Counsel and Judicial Disciplinary Counsel. Lawyer Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by lawyers. Judicial Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by judges. Notwithstanding these primary responsibilities, when circumstances warrant, Lawyer Disciplinary Counsel shall have the authority to investigate and prosecute complaints of ethical violations by judges and Judicial Disciplinary Counsel shall have the authority to investigate and prosecute complaints of ethical violations by lawyers.

Rule 5.1. Appointment.

Chief Lawyer Disciplinary Counsel and Assistant Lawyer Disciplinary Counsel employed on the effective date of these rules shall continue to serve in those positions. Judicial Investigation Commission Counsel employed on the effective date of these rules shall continue to serve as Judicial Disciplinary Counsel. The Lawyer Disciplinary Board shall nominate three candidates for selection by the Supreme Court of Appeals of any successor to the current Chief Lawyer Disciplinary Counsel. The Chief Lawyer Disciplinary Counsel shall select any successors to the current Assistant Lawyer Disciplinary Counsel. The Judicial Investigation Commission shall nominate three candidates for selection by the Supreme Court of Appeals of any successor to the current Judicial Disciplinary Counsel.

Rule 5.2. Removal.

Chief Lawyer Disciplinary Counsel shall not be removed except upon concurrence of the Lawyer Disciplinary Board and the Supreme Court of Appeals. Assistant Lawyer Disciplinary Counsel may be removed by Chief Lawyer Disciplinary Counsel. Judicial Disciplinary Counsel shall not be removed except upon concurrence of the Judicial Investigation Commission and the Supreme Court of Appeals.

Rule 5.3. Practice of law.

Disciplinary Counsel shall be admitted to the practice of law in the State of West Virginia upon the effective date of appointment. Disciplinary Counsel shall not engage in the private practice of law.

Rule 5.4. Authority.

Disciplinary Counsel shall perform all prosecutorial functions and have the authority to (1) receive complaints concerning violations of the Code of Judicial Conduct and the Rules of Professional Conduct; (2) review all complaints concerning violations of the Code of Judicial Conduct and the Rules of Professional Conduct; (3) investigate information concerning violations of the Code of Judicial Conduct and the Rules of Professional Conduct; (4) prosecute violations of the Code of Judicial Conduct and Rules of Professional Conduct before the Lawyer Disciplinary Board, the Judicial Investigation Commission, the Judicial Hearing Board, and the Supreme Court of Appeals; (5) employ and supervise staff necessary for the performance of prosecutorial functions; (6) notify promptly the complainant and the respondent of the disposition of each matter; (7) notify each jurisdiction in which a lawyer is admitted of the transfer to or from disability, reinstatement, or any public discipline imposed in the State of West Virginia; (8) seek reciprocal discipline when informed of any public discipline imposed in any other jurisdiction; (9) forward a certified copy of the order or judgment of conviction in each jurisdiction in which a lawyer is admitted when the lawyer is convicted of crime reflecting adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (10) maintain permanent records of discipline and disability matters and compile statistics to aid in the administration of the system, including but not limited to a single log of all complaints received, investigative files, statistical summaries of docket processing and case dispositions, transcripts of all proceedings or audiotapes if not transcribed, and other records as the Lawyer Disciplinary Board, Judicial Investigation Commission, Judicial Hearing Board or the Supreme Court of Appeals require to be maintained; and (11) undertake, pursuant to information provided by the Lawyer Disciplinary Board, Judicial Investigation Commission or the Supreme Court of Appeals, whatever investigations are deemed appropriate.

Rule 5.5. Expenses.

The salaries of Disciplinary Counsel and staff, their expenses, administrative costs, and the expenses of the members of the Lawyer Disciplinary Board, Judicial Investigation Commission, and Judicial Hearing Board shall be paid from funds contributed by the Supreme Court of Appeals and the West Virginia State Bar. The proportion of funds contributed by the Supreme Court of Appeals and the West Virginia State Bar shall approximate the proportion of judicial disciplinary complaints to lawyer disciplinary complaints. The Office of Disciplinary Counsel shall submit an annual budget to the Administrative Director of the Courts detailing the projected revenues and expenses for approval by the Supreme Court of Appeals. An independent audit shall be conducted annually by a certified public accountant of the funds entrusted to the Office of Disciplinary Counsel and a copy of such audit shall be filed with the Administrative Director of the Courts.

Rule 5.6. Statistical reporting.

Chief Lawyer Disciplinary Counsel and Judicial Disciplinary Counsel shall each make a separate monthly report to the Clerk of the Supreme Court of Appeals regarding (1) the number of complaints under investigation; (2) the number of complaints pending a probable cause decision; (3) the number of complaints pending a hearing; (4) the number of complaints pending a recommended decision; (5) the number of complaints pending before the Supreme Court of Appeals; (6) the number of complaints filed to date in the current calendar year; (7) the number of complaints closed to date in the current calendar year; (8) the number of complaints in which formal charges have been filed to date in the current calendar year; (9) the number of complaints pending less than six months; (10) the number of complaints pending more than six months, but less than twelve months; (11) the number of complaints pending more than twelve months, but less than eighteen months; (12) the number of complaints pending more than eighteen months, but less than twenty-four months; and (13) the number of complaints pending more than twenty-four months.

Rule 6. Referrals to the west Virginia Judicial and Lawyer Assistance Program.

The Judicial Investigation Commission, Judicial Disciplinary Counsel, and/or the Judicial Hearing Board may, at the entity’s discretion, provide a referral to the West Virginia Judicial and Lawyer Assistance Program (WVJLAP) of any judge when the Commission, Counsel, or Board has a reasonable belief that the alleged misconduct of a judge is the result of impairment by drugs or alcohol, or by a mental, emotional, or physical condition including the attendant mental or physical incapacity as a result of advancing years.

Rule 6.1. Notification.

Whenever the Judicial Investigation Commission, Judicial Disciplinary Counsel and/or the Judicial Hearing Board has made the determination to refer a judge to the WVJLAP, it will provide notification to the Executive Director that assistance and intervention have been recommended and will provide to the WVJLAP a copy of any agreement entered into by the Commission or Counsel and the judge or any recommended decision by the Board which concerns referral and treatment.

Rule 6.2. WVJLAP Compliance.

The Executive Director of WVJLAP shall review any referral made pursuant to this Rule. If the Executive Director deems that assistance and intervention is appropriate, the Executive Director will make reasonable efforts to enter into a Monitoring Agreement with the judge and will provide a copy of the duly executed agreement to the Judicial Investigation Commission, Judicial Disciplinary Counsel and/or the Judicial Hearing Board. If the Executive Director determines that assistance and intervention is not appropriate, the Executive Director shall report that determination and the reasons therefore in writing to the Judicial Investigation Commission, Judicial Disciplinary Counsel, and/or the Judicial Hearing Board.

Rule 6.3. Authority.

The WVJLAP shall have the authority to (1) receive information concerning any judge pursuant to Canon 2, Rule 2.14 of the Code of Judicial Conduct; (2) refer information not deemed by the WVJLAP as being subject to Canon 2, Rule 2.14 of the Code of Judicial Conduct to the Office of Judicial Disciplinary Counsel to conduct a full investigation; (3) interview the complainant concerning the information filed; (4) interview the judge concerning the information filed; (5) recommend a psychological and/or medical evaluation of the judge if determined by the WVJLAP that such examination is warranted by the information received; (6) recommend a program of rehabilitation based on information received from a psychological and/or medical evaluation; (7) recommend retirement in case of a judge's advancing years and attendant physical or mental incapacity to the Judicial Investigation Commission, Judicial Disciplinary Counsel, and/or the Judicial Hearing Board; (8) conduct a post-rehabilitation review if deemed necessary; or (9) recommend the dismissal of the information as having no basis.

Rule 6.4. Confidentiality.

All information received pursuant to Canon 2, rule 2.14 of the Code of Judicial Conduct shall be filed with the Clerk of the Supreme Court of Appeals and kept confidential. The Clerk shall serve notice upon the Executive Director of the WVJLAP upon receipt of information concerning a judge and may provide any necessary information to WVJLAP. In the event a judge has not been referred by the Judicial Investigation Commission, Judicial Disciplinary Counsel, or the Judicial Hearing Board, and the judge complies with the recommendations of the WVJLAP and rehabilitative intervention is successful, the WVJLAP shall take no further action and all records shall be sealed and kept confidential. Except as pursuant to Rules 6.5 and 6.6, the WVJLAP shall not release any information regarding its activities.

Rule 6.5. Refusal to comply.

Refusal by a judge to execute a waiver to grant the WVJLAP access to psychological/medical records shall constitute refusal to comply with the WVJLAP and the Judicial Investigation Commission, Judicial Disciplinary Counsel, and/or the Judicial Hearing Board. In the event a judge otherwise refuses to comply with recommendations of the WVJLAP, it shall be the duty of the WVJLAP to refer the original information received to the Office of Judicial Disciplinary Counsel to conduct a full investigation.

Rule 6.6. Failure of rehabilitation.

If after a period of rehabilitation and re-evaluation the WVJLAP finds that rehabilitative measures have not been effective, the WVJLAP shall forthwith file all information received with the Judicial Investigation Commission and/or Judicial Disciplinary Counsel who shall conduct further investigation.

Rule 6.7. Evaluation expenses.

All expenses incurred by the judge for psychological and/or medical evaluations not covered by the judge's health care plan shall be the responsibility of the judge.

Rule 6.8. Proceedings and process.

All proceedings before the WVJLAP shall be nonadversarial. A form for the filing of information pursuant to Canon 2, Rule 2.14 of the Code of Judicial Conduct may be obtained from the Administrative Office of the Courts or Judicial Disciplinary Counsel. The evidence to be considered by the WVJLAP shall include the information filed, interview of complainant, interview of the judge, and psychological and/or medical evaluations. All proceedings shall be confidential. The observations of the WVJLAP shall be in the form of a recommendation only. A judge shall be given ten days within which to accept or reject the WVJLAP's recommendation. It shall be the responsibility of the judge to notify the Executive Director on the WVJLAP in the event of acceptance or rejection of the recommendation.

Rule 6.9. Information provided to Disciplinary Authorities by the WVJLAP.

The WVJLAP will immediately provide to the Judicial Investigation Commission the following information:

(a) A referred judge’s failure to establish contact with WVJLAP or to enter into a recommended Monitoring Agreement;

(b) A referred judge’s failure to substantially comply with the terms of the Monitoring Agreement entered into by the judge and the WVJLAP; and

(c) Regular written status updates concerning the judge’s compliance with the Monitoring Agreement, and at the successful completion of the Monitoring Agreement, a written recommendation for the WVJLAP concerning the judge’s overall compliance.

Rule 6.10. Period of limitation for filing information.

Any information filed more than two years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of an impairment or incapacity of a judge shall not be considered unless it is determined by the WVJLAP that an impairment or incapacity exists at the time of filing.

Rule 7. Mandatory continuing judicial education.

This rule establishes the minimum objective requirements, and the means by which such requirements shall be enforced, to satisfy the obligation of judges, which for purposes of these rules include Justices of the Supreme Court of Appeals and Circuit Judges, both active and senior status, to continue their judicial education throughout the period of their judicial service.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.1. Program administration.

The Administrative Director of Courts is hereby designated as authority to administer the program of mandatory continuing judicial education established by these rules. The Administrative Director is authorized to delegate this authority to a subordinate.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.2. Course approval.

The Administrative Director shall have the authority to accredit individual courses and all or portions of the entire mandatory continuing judicial education program which, in the judgment of the Administrative Director, will satisfy the educational objectives of these rules.
History: [Adopted by order entered May 15, 1995, effective July 1, 1995.]

Rule 7.3. Credit hours.

The Administrative Director shall have the authority to determine the number of credit hours for each accredited course.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.4. Exemptions.

The Administrative Director shall have the authority to grant conditional, partial, or complete exemptions from the education requirements of these rules on an individual basis in cases of extreme hardship or extenuating circumstances.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.5. Disciplinary action.

The Administrative Director shall initiate appropriate disciplinary action in the Supreme Court of Appeals with respect to any judge who fails to comply with the requirements of these rules.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.6. Annual report.

The Administrative Director shall submit an annual report to the Supreme Court of Appeals of activities regarding mandatory continuing judicial education during the preceding fiscal year, including any recommendations for changes in these rules.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.7. Presumptively approved courses.

Courses, including videotapes and audiotapes, from the continuing judicial and legal education programs sponsored by the following organizations, are presumptively accredited unless the Administrative Director determines otherwise: (a) the Supreme Court of Appeals; (b) the West Virginia Judicial Association; (c) the National Judicial College; (d) the American Academy of Judicial Education; (e) the National Council of Juvenile and Family Court Judges; (f) the National Center for State Courts; (g) the West Virginia State Bar; (h) the West Virginia University College of Law; (i) the West Virginia Trial Lawyers Association; (j) the West Virginia Bar Association; (k) the Mountain State Bar Association; (l) the West Virginia Tax Institute; (m) the Defense Trial Counsel of West Virginia; (n) the American Bar Association; (o) the Association of Trial Lawyers of America; (p) the American Law Institute - American Bar Association; (q) the Practicing Law Institute; (r) the Defense Research Institute; (s) the National Institute of Trial Advocacy; (t) the Eastern Mineral Law Foundation; and (u) any county bar association in the State of West Virginia.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.8. Obtaining course approval.

Courses sponsored by other organizations may be accredited by the Administrative Director upon the request of an individual judge in accordance with these rules. Continuing judicial or legal education programs sponsored by other organizations may be accredited by the Administrative Director upon request of the organization in accordance with these rules.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.9. Standards of accreditation.

To be accredited, a course shall have significant intellectual or practical content; it shall deal primarily with matter directly related to the performance of judicial duties and/or the practice of law, including judicial ethics and management; it shall be taught by persons who are qualified by practical or academic experience in the subjects covered; and preferably should include the distribution of good quality written materials pertaining to the subjects covered.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.10. Revocation of accredited status.

The Administrative Director may refuse to accredit or change or remove the accredited status of any sponsor which misrepresents the extent to which a course or program is qualified under these rules.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.11. Delayed accreditation.

In cases where accreditation could not be reasonably obtained in advance for a given course, an individual judge may request accreditation for a course after attendance has been completed.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.12. Reimbursement of expenses.

The procedure for reimbursement of expenses for course attendance shall be in accordance with the provisions of the West Virginia Judicial System Personnel Manual.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.13. Finality of decisions.

All decisions of the Administrative Director concerning accreditation are final.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.14. Minimum continuing judicial education requirements for active judges.

In order to fulfill the obligation under Canon 3B(2) of the Code of Judicial Conduct, which provides, in part, that, ‘A judge shall be faithful to the law and maintain professional competence in it,’ every ‘judge,’ as defined in these rules, shall satisfy the following minimum continuing judicial education requirements.

(A) Justices and circuit court judges: During the period July 1, 1995, through June 30, 1997, and for every two fiscal years thereafter, every active judge shall complete a minimum of thirty credit hours of continuing judicial education, and every senior status judge shall complete a minimum of fifteen credit hours of continuing judicial education, as defined in these rules and approved by the Administrative Director. At least three of such thirty credit hours for active judges shall be taken in courses on judicial ethics and/or management and at least one and one-half credit hours per year or three credit hours per reporting period of such thirty credit hours for active judges shall be taken in courses on domestic relations matters, and every active judge shall attend at least one of the two conferences sponsored by the Supreme Court of Appeals and the West Virginia Judicial Association each year. At least one and a half of such fifteen credit hours for senior status judges shall be taken in courses on judicial ethics and/or management and at least three-quarters credit hour per year or one and one-half credit hours per reporting period of such fifteen credit hours for senior status judges shall be taken in courses on domestic relations matters, and every senior status judge shall attend at least one of the four conferences sponsored by the Supreme Court of Appeals and the West Virginia Judicial Association each two-year reporting period.

(B) Family court judges:During the period July 1, 2002, through June 30, 2004, and for every two fiscal years thereafter, every active family court judge shall complete a minimum of thirty credit hours of continuing judicial education, including but not limited to domestic relations matters, as defined in these rules and approved by the Administrative Director. At least three of such thirty credit hours for active family court judges shall be taken in courses on judicial ethics and/or management, and at least eighteen of such thirty credit hours for active family court judges shall be taken in courses on domestic relations law, and every active family court judge shall attend at least two of the conferences/institutes sponsored by the Supreme Court of Appeals and the West Virginia Family Court Association.
History: [Adopted by order entered November 27, 2001, effective January 1, 2002; November 20, 2003.]

Rule 7.15. Reporting.

On or before July 31, 1997, and every other July 31 thereafter, each judge must file with the Administrative Director, a report of completion of minimum mandatory continuing judicial education. The reporting form shall be developed and provided to judges by the Administrative Director.
History: Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.16. Minimum continuing judicial education requirements for new judges and temporary family court judges.

(A) New judges: Any judge who assumes office during the first twelve months of any twenty-four month reporting period is required to complete fifteen credit hours in approved courses, including at least three credit hours in judicial ethics and/or management, before the end of the current reporting period. Any judge who assumes office during the second twelve months of any twenty-four month reporting period is exempt for that entire reporting period.

(B) Temporary family court judges: Active circuit court judges, senior status judges and active family court judges must meet the minimum continuing judicial education requirements set forth in Rule 7.14 to be assigned to serve temporarily as family court judges, pursuant to W. Va. Code, 51-2A-19(a) and (b). Persons who previously served as family court judges or family court judges, must have completed a minimum of twenty-four continuing legal or judicial education credits, including at least four and one-half credit hours per year, or at least nine credit hours per reporting period in courses on domestic relations matters, and at least three credit hours in courses on legal ethics, office management, or substance abuse within The West Virginia State Bar's last twenty-four month reporting period for continuing legal education, to be assigned to serve temporarily as family court judges, pursuant to W. Va. Code, 51-2A-19(c) [2001].”
History: [Adopted by order entered November 27, 2001, effective January 1, 2002.]

Rule 7.17. Obtaining credits.

Judges may obtain credit for purposes of the mandatory continuing judicial education requirements established by these rules as follows: (1) one credit hour for purposes of the mandatory continuing judicial education requirements established by these rules shall be given for each period of fifty minutes of instruction in an accredited course; (2) one credit hour may be obtained for each period of fifty minutes of videotape or audiotape instruction, provided that such videotape and/or audiotape is accredited by the Administrative Director; (3) no more than half of the mandatory continuing judicial education requirements may be satisfied by videotape and/or audiotape instruction; (4) fifteen credit hours may be obtained during a reporting period for the teaching of an accredited course, with one credit hour given for each twenty-five minutes of instruction or participation in a panel discussion; and (5) thirty credit hours may be obtained during a reporting period for the following forms of publication, including, but not limited to, publishing an article in the law review of an ABA-accredited law school, publishing an article in the official publication of the state bar, authorship or co-authorship of a book, contribution of a paper published in a judicial or legal society's annual, hardbound collection, publication of an article in a bar journal in another state, and contribution through either editing or authorship to periodic newsletters designed to serve the interests of specialists. Based upon these standards, sponsors of accredited courses given in West Virginia shall include with their course materials a statement that, " This course or program qualifies for ______ credit hours under the Rules of Judicial Disciplinary Procedure or the Rules for Mandatory Continuing Judicial Education."
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.18. Retroactive credit.

A judge who has not complied with the mandatory continuing judicial education requirements by June 30 may thereafter obtain credits to be carried back to meet the requirements of the preceding two year reporting period. Any credit obtained, however, may only be used to satisfy the mandatory continuing judicial education requirements for one reporting period.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.19. Transfer of credit.

With the approval of the Administrative Director, a judge may transfer any accumulated credit within a reporting period under the West Virginia Rules to Govern Mandatory Continuing Legal Education to satisfy the requirements of these rules.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.20. Noncompliance and sanctions.

Noncompliance with the reporting or minimum continuing judicial education requirements of these rules may be deemed a violation of Canon 3B(2) of the Code of Judicial Conduct and may result in the imposition of discipline in accordance with these rules. As soon as practicable after July 1, the Administrative Director shall notify all judges who are not in compliance with the reporting or minimum continuing judicial education requirements of these rules of the specific manner in which the judge has failed, or appears to have failed, to comply with these rules. Any judge shall have until October 1 to correct such noncompliance or provide the Administrative Director with proper and adequate information to establish that such member is in compliance with these rules. As soon as practicable after October 1, the Administrative Director shall give notice, by certified or registered mail, to any judge who has not established compliance with these rules for the preceding two year reporting period that after thirty days, the Administrative Director will notify the Supreme Court of Appeals of such fact and request the Court to impose such sanctions as are deemed appropriate.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995.]

Rule 7.21. Right to hearing.

During the thirty day period after the date of notice of the Administrative Director pursuant to Rule 7.20, any judge having received such notice may demand a hearing before the Supreme Court of Appeals. Any such hearing shall be conducted within a reasonable time after receipt of the demand. At such hearing, the judge shall have the burden of establishing that either (a) he or she is in compliance with the requirements of these rules or (b) he or she is entitled to an exemption. In the event such burden is not carried, the Supreme Court of Appeals may impose such sanctions, under these rules, as are deemed appropriate.
History: [Adopted by order entered May 17, 1995, effective July 1, 1995; and amended by order entered July 10, 1996, effective September 1, 1996.]

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