Category Archives: Lawyer unauthorized practice of law while suspended

Zealous representation or lawyer misconduct? Where does the Florida Supreme Court draw the line?

Hello everyone and welcome to this Ethics Alert will discuss the lawyer’s duty to competently and zealously represent a client and the Florida Supreme Court decisions addressing when a lawyer’s conduct may cross the line and constitute misconduct and violate the Florida Bar Rules.  Lawyers understand that they should zealously represent clients and, while that understanding is correct, the Supreme Court of Florida has repeatedly stated that lawyers must act professionally and ethically during the course of the representation, both in and out of the courtroom.

The Florida Bar Rules do not use the word “zealous”; however, the Preamble to Chapter 4 of the Bar Rules states, in part, as follows:

As a representative of clients, a lawyer performs various functions.  As an adviser, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.  As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.  As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.  As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others… A lawyer’s responsibilities as a representative of clients, an officer of the legal system, and a public citizen are usually harmonious.  Zealous advocacy is not inconsistent with justice (emphasis supplied).

The Supreme Court of Florida has addressed zealous advocacy/ethical misconduct in multiple opinions through the years and has addressed when zealous conduct is a violation the Florida Bar Rules.  The following cases are a sample of those opinions and the evolution of the Court’s position on the issue.

In The Florida Bar v. Martocci, 791 So.2d 1074 (Fla. 2001), the Court reprimanded and imposed a two year probation on a lawyer who engaged in unprofessional and abusive conduct and for unethical comments and behavior toward opposing counsel, the opposing party, and the opposing party’s family during depositions, in court, and outside the courtroom during breaks in the proceedings.  The attorney was representing the husband in a bitter divorce, child custody, and child dependency matter.  As a condition of the probation, the attorney was required to be evaluated by Florida Lawyers Assistance, Inc. for possible anger management skills training or mental health assistance or both.

In The Florida Bar v. Morgan, 938 So.2d 496 (Fla.2006), the Court suspended an attorney for ninety-one days for courtroom misconduct. The attorney had been publicly reprimanded and suspended for ten days on two prior occasions. The attorney refused to acknowledge the wrongful nature of his conduct but the referee found (and the Supreme Court adopted) the mitigating factor of good character and reputation, including the provision of pro bono legal services, serving as a role model for an assistant state attorney, and being held in high esteem as an excellent and passionate advocate by two judges and an attorney.

In The Florida Bar v. Abramson, 3 So.3d 964 (Fla. 2009), the attorney was found to have been repeatedly disrespectful and rude to the trial judge at a hearing and was suspended for ninety-one days.  The Supreme Court opinion stated that:

“Abramson’s misconduct was egregious. He was disrespectful and confrontational with the presiding judge in an ongoing courtroom proceeding in the presence of the pool of prospective jurors in a criminal case. Regardless of any perceived provocation by the judge, Abramson responded inappropriately by engaging in a protracted challenge to the court’s authority. His ethical alternative, if he believed the trial court had erred, was by writ or appeal. He has also been publicly reprimanded twice before for serious misconduct.  See also The Florida Bar v. Wasserman, 675 So.2d 103 (Fla. 1996) (two six-month consecutive suspensions on an attorney in his fifth discipline case before the Court where the attorney had an angry outburst in court after an unfavorable ruling and expressed contempt for the court, stated in the hallway outside the courtroom that he would counsel his client to disobey the court’s ruling, and used profane language over the telephone to a judge’s judicial assistant);  The Florida Bar v. Price, 632 So.2d 69 (Fla.1994) (ninety-one day suspension for appearing in court under the influence of alcohol and behaving in a hostile, abrasive, and belligerent; reinstatement conditioned on ability to show that satisfactorily completion of an evaluation and course of treatment for substance abuse approved by the Bar.”

In The Florida Bar v. Norkin, 132 So.3d 77 (Fla. 2013), the lawyer was suspended for two (2) years and required to appear before the Florida Supreme Court for a public reprimand.  The Court’s opinion detailed numerous instances of misconduct by the lawyer, including engaging in “tirades and antagonistic behavior” in exchanges with judges and other attorneys.  The opinion noted that it is “profoundly concerned with the lack of civility and professionalism demonstrated by some Bar members. The Court has repeatedly ruled that unprofessional behavior is unacceptable.  (citations omitted).”  The lawyer appeared before the Court for the reprimand in February 2014, which was read by then Chief Justice Ricky Polston, and smirked during the proceeding.  The opinion is here:  Florida SC Norkin 2013

In The Florida Bar v. Norkin, 183 So. 3d 1018 (Fla. 2015), The Florida Bar filed a petition for contempt and a complaint alleging that Norkin had failed to comply with the Court’s (and Bar Rule’s) requirement that he notify clients of his suspension and provide an affidavit confirming same and that the lawyer “had engaged in the practice of law after the effective date of the suspension by sending an e-mail to opposing counsel in a case pending in the circuit court questioning a hearing date and discussing the results of the hearing and the legal sufficiency of the motion addressed, and by preparing a pleading for his former client, which the client filed in the circuit court case.”  He also sent disparaging e-mails to Bar Counsel and admitted during the underlying Bar proceedings that he had smirked during the public reprimand before the Court.

The referee granted summary judgment in favor of the Bar and recommended disbarment.  In an unanimous opinion dated October 8, 2015 (which is here Florida SC Norkin 10/8/15, the Court permanently disbarred the lawyer and stated:

“As found by the referee in his report, Norkin’s e-mails to bar counsel referred to bar counsel as “evil” and “despicable”; called the proceedings against him “the most unjust act in judicial history”; stated that bar counsel had no conscience; and stated, “I’m preparing the lawsuit against you. Keep an eye out.”  At the hearing on the motion for sanctions, the referee questioned Norkin about the e-mails and his behavior during the public reprimand administered by this Court. In response, Norkin asserted his “right to speak freely and to express his beliefs in the manner of his choosing,” and freely admitted that during the public reprimand, he intentionally smirked and stared down each Justice one by one. We have disciplined attorneys for similar conduct as a violation of rule 4-8.4(d), including Norkin himself. See Norkin, 132 So. 3d at 86; Fla. Bar v. Martocci, 791 So. 2d 1074, 1075, 1078 (Fla. 2001) (finding that making insulting facial gestures at opposing counsel, making sexist comments, and disparaging opposing counsel violated rule 4-8.4(d)); Fla. Bar v. Buckle, 771 So. 2d 1131, 1132 (Fla. 2000) (finding that humiliating and intimidating letter, sent by attorney to alleged victim of his client, violated rule 4-8.4(d)). Accordingly, we approve the referee’s recommendation.

Here, disbarment is amply supported. As noted by the Bar, the Court has not hesitated to disbar attorneys who continue to practice law after being suspended. See Fla. Bar v. Lobasz, 64 So. 3d 1167, 1173 (Fla. 2011) (disbarring attorney for practicing law while suspended, even where attorney suffered from posttraumatic stress disorder, anxiety, and depression); Fla. Bar v. D’Ambrosio, 25 So. 3d 1209, 1220 (Fla. 2009) (disbarring suspended attorney who held himself out as eligible to practice law by sending letters on firm letterhead subsequent to suspension); Fla. Bar v. Forrester, 916 So. 2d 647, 654-55 (Fla. 2005) (disbarring attorney for practicing law while suspended); Fla. Bar v. Heptner, 887 So. 2d 1036, 1045 (Fla. 2004) (disbarring attorney for multitude of violations, but noting that disbarment would be appropriate solely on basis of continuing to practice law after being suspended); Fla. Bar v. Rood, 678 So. 2d 1277, 1278 (Fla. 1996) (disbarring attorney for practicing while suspended); Fla. Bar v. Greene, 589 So. 2d 281 (Fla. 1991). Moreover, given Norkin’s continuation of his egregious behavior following his suspension and during the administration of the public reprimand, we conclude that he will not change his pattern of misconduct. Indeed, his filings in the instant case continue to demonstrate his disregard for this Court, his unrepentant attitude, and his intent to continue his defiant and contemptuous conduct that is demeaning to this Court, the Court’s processes, and the profession of attorneys as a whole. Such misconduct cannot and will not be tolerated as it sullies the dignity of judicial proceedings and debases the constitutional republic we serve. We conclude that Norkin is not amenable to rehabilitation, and as argued by the Bar, is deserving of permanent disbarment. See Fla. Bar v. Behm, 41 So. 3d 136, 139-40 (Fla. 2010) (stating that persistent course of unrepentant misconduct warrants permanent disbarment); Fla. Bar v. Carlson, 183 So. 2d 541 (Fla. 1966) (stating that permanent disbarment is warranted where conduct of respondent indicates he is beyond redemption).”

Bottom line:  While Norkin may be an extreme case, lawyers must be on notice that the Supreme Court of Florida has become far less tolerant of rude, belligerent, and disrespectful behavior, regardless of whether it is couched in terms of “zealous advocacy” on behalf of a client.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N., Suite 150,

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Ohio Supreme Court permanently disbars lawyer who was videotaped in court practicing law while indefinitely suspended

Hello and welcome to this Ethics Alert blog which will discuss another recent Ohio Supreme Court opinion disbarring a lawyer who was caught on video representing a client in court 3 times, beginning less than three months after his license was indefinitely suspended.  The case is Cleveland Metro. Bar Assn. v. Pryatel, Slip Opinion No. 2016-Ohio-865. (March 9, 2016).  The disciplinary opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-865.pdf and the link to the oral argument in the case is here: http://www.ohiochannel.org/video/case-no-2015-1005-cleveland-metropolitan-bar-association-v-mark-r-pryatel.

According to the opinion, the lawyer was indefinitely suspended in April 2013 for multiple violations of lawyer disciplinary rules, including misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  The lawyer was subsequently recorded on video and audio tapes representing a client (Richard Brazell) in court on three separate occasions in June and July 2013.

The lawyer first attended a probation violation hearing and stood with the client, admitting the probation violation on the client’s behalf, and speaking for the client.  The client’s girlfriend and stepfather testified before the professional conduct board that they paid the lawyer $450.00 for the representation (for both the lawyer’s previous representation and for future representation) and that the lawyer did not inform them that his license was suspended.

Two days after the probation hearing, the lawyer appeared with the client a second time on unrelated charges in another court.  An audio recording of the client’s arraignment indicated the lawyer spoke on the client’s behalf.  He told the magistrate that he was not the client’s attorney and the client was representing himself as the two worked out their business relationship. The magistrate told the board that the lawyer did not indicate that his license was suspended.

About a month later, the lawyer attended a hearing with the client a third time, answered questions on his behalf, and entered a plea to a violation of probation for the client before the judge.  The prosecutor and judge in that case both told the board that they believed that the lawyer was representing the client.  The judge became suspicious and asked his assistant to research the lawyer and found out that he was suspended.

When confronted with the allegations that he had represented the client in a deposition in the Bar matter, the lawyer denied under oath that he appeared with the client at the probation violation hearing or municipal court proceedings, and claimed that he told the client’s family that his license was suspended and that he was not paid for his legal work.  The opinion stated:  “All of these statements (by the lawyer) were later contradicted by testimonial, video, audio, and documentary evidence presented at the disciplinary hearing.”

The board found the following aggravating circumstances: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, a lack of cooperation in the disciplinary process, the submission of false statements during the disciplinary process, and a refusal to acknowledge the wrongful nature of the conduct.  Although the board acknowledged that the lawyer had been involved with the Ohio Lawyers Assistance Program, it found no mitigating factors.

The lawyer objected to the board’s finding that he practiced law while suspended and argued that his actions in the second appearance did not constitute the “practice of law” since he did not advocate for the client, cross-examine any witnesses, cite legal authority, or handle any legal documents.  The opinion rejected that argument and cited Cleveland Bar Assn. v. Comp Management, Inc., a 2006 case stating that the practice of law is not limited to advocacy or filing of legal documents, but also includes representation before a court, preparation of legal documents, management of client actions, all advice related to law, and all actions connected with the law taken on a client’s behalf.  “Here, the evidence demonstrated that the lawyer accompanied the client to the court, stood with him before the bench, spoke on his behalf, waived his legal rights as a criminal defendant, and entered a plea for him.  Under any definition, the lawyer’s appearance on behalf of the client constituted the practice of law.”

The lawyer claimed that he had been “sandbagged” by the bar association which investigated the Bar matter because the case against him did not originally contain the video of his appearance at the probation hearing. The bar association later supplemented its case with the video, and the lawyer had more than two weeks to review it before his disciplinary hearing. The opinion found that the lawyer did not provide any explanation to support the allegation that the introduction of the video prevented him from adequately defending himself against the charges.

The lawyer argued that he should not be disbarred because his actions involved a single client who benefited from his assistance and that he helped the client for “sympathetic and altruistic reasons.”  He also argued that he cooperated during the disciplinary process and had a history of providing quality legal services to indigent clients, and other lawyers charged with the same misconduct were not disbarred.  His lawyer argued at the oral argument that he had psychological and/or other issues and was participating in Ohio’s lawyer assistance program, and that the indefinite suspension should be again imposed.

The majority of the justices disagreed and permanently disbarred the lawyer stating:  “Less than three months after our order forbidding Pryatel to appear on behalf of another before any court, he represented a client in three court proceedings. As the board found, his actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”  Three justices dissented, stating that the indefinite suspension should be continued.

Bottom line: This lawyer had the apparent audacity to represent a client on 3 different occasions and in 2 separate cases beginning less than 3 months after he was indefinitely suspended from the practice of law for, among other things, misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  As the opinion states: “(the lawyer’s) actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”

Be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Supreme Court permanently disbars lawyer for “defiant and contemptuous conduct”, and practicing while suspended

Hello and welcome to this Ethics Alert which will discuss the October 8, 2015 Florida Supreme Court opinion which permanently disbarred a lawyer for contempt of his previous 2 year suspension order, threats to Bar counsel, and “unrepentant attitude”.  The case is The Florida Bar v. Jeffrey Alan Norkin, Case Nos. SC11-356 and No. SC13-2480.  The opinion is here:  http://www.floridasupremecourt.org/decisions/2015/sc11-1356.pdf

The lawyer was serving a two-year suspension which began in 2013 for “appalling and unprofessional behavior” during litigation over a dispute between business partners. He also received a public reprimand administered by Supreme Court Chief Justice Ricky Polston in 2014.

According to the October 8, 2015 opinion, in the previous disciplinary case:

Respondent made threatening and disparaging statements to a senior judge, who had been appointed to serve as a provisional director by civil trial Judge Dresnick. This misconduct violated Rules Regulating the Florida Bar 4-8.2(a) (a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, or public legal officer) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct). Respondent also demonstrated unprofessional and antagonistic behavior during numerous hearings in the civil case. Respondent’s behavior was offensive to both Judge Dresnick and successor Judge Valerie Manno Schurr. His conduct also disrupted the proceedings, in violation of rule 4-3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal).  Finally, Respondent made approximately ten disparaging or humiliating statements to opposing counsel. Respondent yelled insults at opposing counsel in the hallway of a courthouse in front of other attorneys. Respondent shouted in front of a judicial assistant and other attorneys that opposing counsel was a liar. Such misconduct was in violation of rule 4-8.4(d) (prohibiting an attorney from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against other lawyers on any basis).”

My previous blogs on the 2 year suspension case are here:

https://jcorsmeier.wordpress.com/2013/11/04/florida-supreme-court-suspends-lawyer-for-2-years-for-appalling-and-unprofessional-behavior-including-screaming-at-judges-and-opposing-counsel/

and here: https://jcorsmeier.wordpress.com/2014/09/17/florida-supreme-court-issues-in-person-public-reprimand-to-lawyer-suspended-for-2-years-for-appalling-and-unprofessional-behavior/

The Florida Bar filed a petition for contempt and order to show cause in December 2013 alleging that the lawyer failed to provide the required affidavit attesting to his notification to clients, opposing counsel, and judges that he was suspended.  The Bar filed an amended contempt petition in January 2015 alleging that the lawyer had practiced law after he was suspended by e-mailing opposing counsel regarding a pending case, discussing the results of a hearing, and preparing a pleading for his former client.

The amended contempt petition also requested that the lawyer be sanctioned for sending three offensive and threatening e-mails to Bar counsel and pointed out that the lawyer showed his contempt for the Court through his facial expressions and body language during the public reprimand.  The video of the lawyer’s 2014 public reprimand is here: http://www.wfsu.org/gavel2gavel/viewcase.php?eid=2129

According to the opinion, “(a)t the hearing on the motion for sanctions, the referee questioned Norkin about the e-mails and his behavior during the public reprimand administered by this Court.  In response, Norkin asserted his ‘right to speak freely and to express his beliefs in the manner of his choosing,’ and freely admitted that during the public reprimand, he intentionally smirked and stared down each Justice one by one.”

The referee granted summary judgment on the issue of the lawyer’s alleged practice of law while suspended and failure to notify clients, opposing counsel, and judges that he was suspended, found him in contempt.  For that and other misconduct, including “knowingly or through callous indifference disparaged, threatened, and humiliated bar counsel” by sending threatening e-mails, the referee recommended that the lawyer be disbarred.

The opinion affirmed the referee’s findings that: “Norkin’s e-mails to bar counsel referred to bar counsel as ‘evil’ and ‘despicable’; called the proceedings against him ‘the most unjust act in judicial history’; stated that bar counsel had no conscience; and stated, ‘I’m preparing the lawsuit against you. Keep an eye out.’”

The opinion further stated: “Given Norkin’s continuation of his egregious behavior following his suspension and during the administration of the public reprimand, we conclude that he will not change his pattern of misconduct.”  “Indeed, his filings in the instant case continue to demonstrate his disregard for this court, his unrepentant attitude, and his intent to continue his defiant and contemptuous conduct that is demeaning to this court, the court’s processes, and the profession of attorneys as a whole.”  The opinion affirmed the referee’s recommendation and permanently disbarred the lawyer.

Bottom line:  This opinion (presumably) concludes the very long saga of this lawyer’s prosecution by The Florida Bar and makes it clear that this lawyer continued to engage in extreme and outrageous behavior and practiced law after he was suspended and failed to comply with the suspension terms, which resulted in his permanent disbarment.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Minnesota lawyer is suspended for an additional 60 days for writing former client’s winning ‘pro se’ appeal brief while suspended

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Minnesota Supreme Court suspending a lawyer for an additional 60 days for writing a brief for a pro se former client while he was under a suspension in an unrelated matter.  The case is In re Petition for Disciplinary Action against Stephen Vincent Grigsby, Minnesota Supreme Court Case No. A11-0976 (July 11, 2012) and the opinion is at 7-11-12 Minnesota SC Opinion 60 day suspension for ghost writing while suspended.

According to the opinion, after the lawyer was suspended from practice for 60 days on April 16, 2009 for unrelated misconduct, he attempted to find alternative counsel for about 30 his clients; however, he was not able find another lawyer to write an appellate brief for a client (J.R.) who was convicted of DUI in a retrial after a judge declared a mistrial without his agreement.  The lawyer sent a letter to the client advising that he had been suspended from practice and could no longer represent him.  After the lawyer was unable to find another lawyer to write the appeal brief, he wrote it himself (at no charge), signed the former client’s name to the pleading and timely filed it with an explanatory letter.  An assistant county attorney assigned to the DUI case on appeal suspected that it had been ghostwritten and reported it to the Minnesota disciplinary authorities.

After an evidentiary hearing, the referee issued a report finding that, by “drafting a legal document on behalf of a client, and submitt[ing] that document in the client’s appeal” while suspended, the lawyer had violated Minnesota Bar Rule 5.5(a), which provides that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.”  The referee also recommended that the lawyer be found guilty of violating Minnesota Bar Rules related to misrepresentation, fraud and deceit, and candor to the tribunal.

The opinion agreed with the referee that, by drafting an appellate brief while suspended, signing the client’s name to the brief, and falsely stating to the appellate court that the former client was pro se, the lawyer had violated Rule 5.5(a); however, it rejected the referee’s recommendation that the lawyer be found guilty of violating Bar Rules related to misrepresentation, fraud and deceit, and candor to the tribunal.

The opinion also rejected the lawyer’s argument that, even if the Minnesota Bar Rules prohibited his conduct, he was doing what was necessary to protect his ex-client’s interests in what amounted to an emergency under Minnesota Bar Rule 1.2(a), which provides that a “lawyer may take such action on behalf of the client as is impliedly authorized” by the client.  According to the opinion, the lawyer had other options, such as asking for an extension of time to file the brief, or requesting an ethics opinion regarding his obligations.

After considering the circumstances and mitigating factors, the opinion also rejected the referee’s recommendation of a nine (9) that month rehabilitative suspension which would have required that the lawyer prove rehabilitation in order to be reinstated and imposed a non-rehabilitative 60 day suspension.  The lawyer was also required to retake and pass the ethics/professional responsibility portion of the Bar Exam, and pay costs in the amount of $900.00.

Bottom line:  This lawyer apparently was trying to do the right thing for his client; however, he violated the Minnesota Bar Rules to do it.  Significantly, the lawyer was not found guilty of misrepresentation, fraud and deceit, and/or candor to the tribunal and the opinion also noted that the brief that the lawyer filed must have been effective because the former client won his appeal and the DUI conviction was reversed on former jeopardy grounds.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

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