Pro Bono: Still Relevant for Access to Justice

on Wednesday, 18 November 2009. Posted in Issue 62 Who Will Pay for Recession?

Patrick Hume SJ

November, 2009

Pro Bono: Still Relevant for Access to Justice

Introduction

A call to justice for the poor and marginalised is to be found in the three major monotheistic faith traditions. The Hebrew tradition specifically mentions the need for justice for the poor in their lawsuits.1 In Christian scriptures, scribes or lawyers were encouraged to foster justice, especially among the poor and widows. A similar call to justice can be found in the Quran,2 alongside calls to charity.3 Each tradition is intimately linked to law, and emphasises the need for its careful application with justice and mercy.4

 

These traditions are among the forces that have influenced the long-established practice of lawyers undertaking work pro deo, or pro bono publico (for the public good). What is now generally called ‘pro bono’ refers to work done by a solicitor or barrister without expectation of a fee.5

There is no definition of pro bono that is common to all jurisdictions.6# One simple definition is: ‘Lawyers providing free legal services to persons of limited means’.#7 Broader definitions encompass not just work on behalf of individuals but work on behalf of organisations and communities. For example, in the Pro Bono Declaration for the Americas, the definition used is:

Pro bono legal services are those provided without a fee, or expectation of a fee, principally to benefit poor or underprivileged persons or communities or the organizations that assist them. They may include representation of persons, communities or organizations in matters of public interest who otherwise could not obtain effective representation. In addition, pro bono legal services can also benefit civic, cultural and educational institutions serving the public interest who otherwise could not obtain effective representation.8

This article first looks briefly at some high-profile pro bono activity and principles in various jurisdictions which have developed pro bono in a modern, proactive manner. Next, some features of international declarations concerning legal pro bono are outlined. Finally, a brief examination of pro bono activity in Ireland leads to some proposals for a more integrated, proactive approach to the provision of pro bono services in this country.

Pro Bono in other Jurisdictions

United States

The level of interest in pro bono work in the United States is reflected in the wide range of articles and books that have been published on the topic.

The American Bar Association (ABA) and several local bar associations strongly support pro bono initiatives. Within the ABA, there is a ‘Center for Pro Bono’ and a ‘Standing Committee on Pro Bono and Public Service’.9

The ABA Model Rule 6.1, ‘Voluntary Pro Bono Publico Service’, states: ‘Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.’10 Meeting this target is, of course, not mandatory but Deborah L. Rhode, who has written extensively on pro bono, has drawn attention to the fact that ‘most profitable firms often have high participation levels’. She adds: ‘Some evidence suggests that, at least for large firms, pro bono participation may be positively correlated with financial success.’11

Pro bono services can range from very small-scale initiatives upwards to significant levels of legal assistance – from the provision of web-based information to education via the net or in classes, to advice by para-legal assistants, to assistance before the courts with various levels of expertise from law students to senior attorneys. This variety of services is referred to as Mixed Model Delivery.12

Rhode points to research findings on lawyers’ perceptions of the positive influences of pro bono: they ranked ‘personal satisfaction’ as number one and ‘professional obligation’ second.13 It is interesting that among the influences mentioned was ‘religion’.14

One well-developed area of pro bono service in the United States is that provided by law schools across the country. Most of the major law schools (including, for example, Harvard, Georgetown, Fordham, Boston College, and Seattle University15 ) have some provision for offering volunteer work or pro bono service opportunities; some law schools make pro bono work a requirement.

The standards and experience provided in law school placements vary considerably. Rhode states that for such programmes to be effective, ‘placements should provide meaningful work, offer opportunities to be involved in problem solving and decision making; supply adequate support and feedback; and enable individuals to develop skills and assume increasing responsibility’.16

A different aspect of pro bono educational work is legal education for a wide range of groups through a programme called Street Law. Arising from an initiative of law students in Georgetown University, Washington D.C. in 1972,17 Street Law programmes and materials were developed and  systematised and they have been widely used in a variety of settings in the United States. Internationally, Street Law projects have been undertaken in over thirty countries, including the UK and South Africa.18 The Street Law Programme Handbook describes the approach used with community groups:

Under this scheme [law] students work with community groups to identify legal concerns. The students then research the relevant material and present their findings to the partner groups in a user-friendly form. Through discussion, rôle-play and other inter-active methods, students and the community group members both learn about the law.19

England and Wales

LawWorks is the operating name of the Solicitors Pro Bono Group; it was set up by a group of solicitors concerned about access to justice. It provides free legal help (including legal advice, mediation and casework assistance) to individuals who are unable to access legal aid. It also provides legal assistance to small charities, not-for-profit, voluntary and community organisations. The membership of LawWorks includes ‘almost all the major law firms in the UK’. The organisation seeks to encourage ‘the widespread involvement of law schools and their students in pro bono activity’ and it is actively engaged in policy work in relation to pro bono service.20

The Law Society of England and Wales has held a Pro Bono Awards ceremony each year since 1998. The awards celebrate outstanding pro bono work undertaken by trainees, in practice or on course work, as well as that of newly-qualified solicitors with up to five years experience. These awards recognise both individual pro bono activities and participation in team projects.21

Since 2001, there has been a National Pro Bono Week, with events organised by various groups involved in the provision of legal aid and advice and legal education.22 In 2008, there were seventy events on the theme of public legal education and partnership between the professions and the voluntary sector. A committee, formed from the Law Society, Bar Council, LawWorks and others, plans the events for the week.23 During the 2008 Pro Bono Week, the Law Society highlighted the value of the work done by lawyers on a pro bono basis, estimating this to be the equivalent of nearly £350 million or 2 per cent of gross income.24

European Pro Bono Forum

In the broader European context, the European Pro Bono Forum is a major international conference organised by the Public Interest Law Institute (PILI). The Forum, which was first held in 2007, aims to provide a platform for the exchange of information relating to pro bono activities in Europe, and for networking among lawyers, academics and NGOs committed to pro bono work. The 2009 Forum, held on 5–6 November 2009, considered the impact of the global economic crisis on pro bono practice.25

Canada

The Canadian Bar Association (CBA) is active in encouraging pro bono work, and has established a Pro Bono Committee to foster such service among the bar (the Canadian Bar is now unified, each lawyer qualifying as both a solicitor and barrister).26 The Committee provides practical aid to law firms in setting up a pro bono policy and in deciding whether to accept a pro bono file.

In practice, the implementation of some of the principles of pro bono service is managed at province level by a pro bono law group, such as Pro Bono Law Ontario.27 These provincial bodies provide a system to enable lawyers become involved in pro bono work and to link skills to needs. They supply resources such as online tools and advice, and also provide a special insurance for lawyers who give their services pro bono.

Other Countries

In Australia, a 2007 report, Mapping Pro Bono in Australia, looked at existing provision and made proposals in regard to principles and practice for the future development of pro bono work.28 Interestingly, the report noted that sole practitioners appeared to engage in more pro bono work than did solicitors in large firms.29

In outlining the constraints on the delivery of pro bono, the report drew attention to the fact that there is often a mismatch between client needs and the skills of the lawyers willing to undertake pro bono work.30 It also noted the various factors which contribute to lawyers being reluctant to engage in litigation, including uncertainty as to the size, scope, length, and complexity of the case, and the adverse costs that may be involved.31

Regarding future strategy in relation to pro bono, the report focuses on greater co-ordination, with service providers working together. There was recognition that single pathways for accessing services help avoid confusion among potential clients. One organisation indicated as enabling enhanced coordination was the Public Interest Law Clearing Houses, which facilitate the connecting of clients and relevant lawyers.32 Other issues which the report suggested needed to be addressed were: training of volunteers; promotion of law school volunteer programmes, and provision of courses which address the legal needs of poorer clients.

In recent years, the Israel Bar Association has been active in developing a pro bono legal aid programme for the poorer sections of society.33 The programme, called ‘Schar Mitzva’, has been described as the social flagship project of the Israel Bar.34 It operates a hotline staffed on a volunteer basis by students. The programme also operates in thirty-four ‘rights centres’, providing pro bono counselling by professional and certified lawyers. The President of the Israel Bar has commented that an initial concern that the programme would hurt the livelihoods of lawyers ‘has gradually faded away from the arguments of opponents’.35

An interesting recent development in pro bono internationally is a new requirement in the Philippines that all practising lawyers provide mandatory free legal aid service in all cases involving marginalised and poor litigants.36  The rule, introduced on 1 July 2009, requires each practising lawyer to undertake a minimum of sixty hours of free legal aid work per year, with a minimum of five hours each month. Continuation in practice depends on being issued with a certificate attesting to hours given in pro bono service. Furthermore, lawyers who fail to comply with the free legal aid requirement for three years will face disciplinary proceedings.

National and International Instruments

Several bar associations have some form of explicit pro bono rule,37 policy, protocol38 or declaration which is intended to guide this form of service.39 LawWorks in England, for example, has a Pro Bono Protocol which sets out the ‘core values’ of pro bono work, and which aims to assist ‘both those who undertake it and their clients’.40

Pro bono declarations tend to be more comprehensive – often including specific goals for hours spent in pro bono work as well as minimum standards to guide the service.

Lawyer associations of several countries in the Americas produced the Pro Bono Declaration for the Americas. This declares: ‘Members of the legal profession have a responsibility to provide pro bono legal services. This responsibility stems from the profession’s role and purpose in society, and from its implicit commitment to a fair and equitable legal system.’41 The Declaration suggests a minimum of twenty hours service per year, a focus on support for NGOs and the promotion of pro bono as an ethical obligation.

The International Bar Association (IBA), of which both the Bar Council of Ireland and the Law Society of Ireland are members, approved the IBA Pro Bono Declaration in October 2008.42  This international agreement is ‘inspired by the vision of a better, more just world’. It points out that access to justice is, for all individuals, a human right, that barriers to justice should be dismantled, and that the legal profession has ‘the duty and opportunity to provide pro bono legal service’.43

It calls on lawyers to specify a proportion of their time and resources for pro bono, on firms to promote and value this work, and on governments to support the provision of services by various means, including reduced court fees. Moreover, it urges the promotion of broad educational activities to foster pro bono service.

Pro Bono in Ireland

Current Situation

Not much has been written on pro bono law in Ireland. Yet pro bono service has long been feature of the legal profession in Ireland, and the tradition has continued despite the introduction of a system of civil legal aid in the late 1970s.

Personal conversations reveal that many solicitors and barristers give free legal assistance. Most of this voluntary work is ad hoc, and depends on a pre-existing relationship, with the client being perhaps a family member, friend, associate, neighbour, club or work colleague. However, some pro bono work is carried out in a more formal way, through FLAC (Free Legal Aid Centres) or in a community law centre, such as Ballymun Community Law Centre or Northside Community Law Centre.

The Bar Council of Ireland has explicitly commended its members to offer assistance pro bono.44 Furthermore, the Council recognises pro bono service as fulfilling some of the requirements for Continuing Professional Development.

Writing in the Law Society Gazette in 1998, John Costello, solicitor, drew attention to the tangible benefits to lawyers arising from engaging in pro bono work; he suggested that personal development, training, staff morale and public relations are all seen to improve when firms implement pro bono schemes.45 He pointed to a number of specific areas in which there were needs not being met by the statutory legal aid service; these included, employment appeals; environmental law; copyright law for young artists; housing and tenancy law; health law; community law; public interest law, which might include constitutional law.46

This identification of a broad spectrum of need is still valid today, more than ten years later. One other area of concern might be added – that is, social welfare law. This is an area which affects in particular those who are financially deprived, yet it is an aspect of law rarely addressed in law schools or in the very practice-oriented courses provided by the Law Society of Ireland and King’s Inns in the training of lawyers in Ireland.

Given the type of needs outlined above, how does a lawyer in Ireland make available his or her skills to those in need of a legal service without seeking out clients, or soliciting custom? This question focuses attention on the issue of a formal, organised approach to the provision of pro bono legal services in Ireland.

Pro Bono Task Force

In 1999, the Law Society established a Pro Bono Task Force, chaired by John Costello. The Report of the Task Force was published in 2001.47

The Report acknowledged the pro bono work being done in Ireland but argued that it should be provided in a more organised manner. Ireland is, it noted, ‘one of the few common law countries without a properly organised Pro Bono Scheme’. The Report argued that there was need to move beyond the existing ‘piecemeal and ad hoc’ approach to pro bono activity and that official support by professional bodies was necessary for pro bono to flourish. In effect, the Task Force seemed to hold that pro bono work is not an optional ‘work of charity’ but a professional responsibility.

The key recommendation of the Task Force was that a formal pro bono scheme be established. This, it emphasised, would not replace the existing work of solicitors or the work done by the Legal Aid Board but would augment what was already being provided. The Task Force highlighted in particular the need for free legal advice, noting that the potential demand for this far exceeded the capacity to respond of the existing statutory service.

The Task Force suggested that the key steps towards establishing a pro bono scheme included:

(i) Joint Action by the Law Society and Bar Council: In light of the fact that Ireland is a small jurisdiction with limited financial resources, it was essential that the Law Society and the Bar Council should act together in establishing one limited pro bono scheme.

(ii) Establishment of a Pro Bono Charity: An ‘urgent practical step’ was the establishment of a ‘Pro Bono Charity’. This would be ‘a Company Limited by Guarantee whose board would comprise both solicitors and barristers’ (Recommendation 8).

This proposal envisaged the Pro Bono Charity providing services for FLAC, Citizen Information Centres, NGOs and community groups. Initially, it was suggested, individuals would not have direct access to the Pro Bono Charity but in time such access might be possible under strict criteria to be established during the early development of the charity.

(iii) Appointment of Pro Bono Co-ordinator: The Law Society ‘should appoint a co-ordinator to represent the Society in liaising with the charity to identify areas in which solicitors/apprentices could assist with the work of the charity’ (Recommendation 11). The Pro Bono Co-ordinator or some member of the Council would have special concern for the development and fostering of pro bono.

While the Report of the Task Force was widely welcomed at the time of  publication, its recommendations have yet to be implemented.

Indemnity and Adverse Costs

Two obstacles to the provision of pro bono services were not the subject of recommendations by the Task Force but both are crucial: these are indemnity and adverse costs.

The question of indemnity – professional liability insurance – constitutes a major barrier to lawyers who would like to assist NGOs on a pro bono basis. The issue of adverse costs arises because, in Irish law, costs follow the event, which means the final legal bill must be borne entirely by the losing party, unless a judge makes no order as to costs and lets each side pay its own way. Pro bono litigants, therefore, could be liable for any costs ordered in favour of the opponent. While it is possible to apply to the High Court for a protective cost order, such orders do not seem to have been granted in practice. A resolution of the difficulties in relation to both indemnity and costs would be essential for the development of pro bono in Ireland.

FLAC and PILA

The establishment of FLAC by law students in 1969 was a key moment in pro bono legal provision in Ireland. FLAC was set up to provide free legal advice to those who could not afford legal services and to campaign for the establishment of a system of civil legal aid. The organisation still provides ‘basic free legal services to the public’, as well as campaigning on a range of legal and human rights issues.48

Early in 2009, FLAC established a new initiative, Public Interest Law Alliance (PILA), ‘to facilitate and promote the use of the law in the public interest’.49 One of the aims of this project is to establish a register of lawyers available to undertake public interest/pro bono work and develop pro bono initiatives amongst law firms and with practitioners. This new initiative raises the question of the desirability, and feasibility, of the Law Society and Bar Council establishing a pro bono/public interest law officer in their respective associations.

Pro Bono and Legal Education

In other jurisdictions, law schools play a significant role in the provision of legal services for free. This is in part due to the fact that the law schools undertake not only legal education but the training of lawyers in legal skills. However, it may be noted that some pro bono work is organised in UK law schools, which do not have responsibility for legal training.

The fact that it was law students who were responsible for the founding of FLAC should inspire those currently involved in legal education in Ireland to seek new ways of providing pro bono services to meet present needs. In the circumstances of today, there is room for developing forms of clinical legal education in law schools in Ireland, and in the professional training schools at the Law Society and at King’s Inns.

NUIG has already begun to provide placements for some students with statutory and voluntary bodies (such as the Equality Authority, the National Federation of Voluntary Bodies, Rape Crisis Network Ireland) and with practitioners throughout the country.50 This is a start. Law schools might be encouraged to actively and formally promote pro bono by students and to appoint a pro bono officer to promote this service.

Australia actively encourages the establishment of Pro Bono Student Associations [PBSA]51 with the provision of relevant material to set up associations in law schools. The primary features of the PBSA programme are:

  • The programme matches law students to a need;
  • Each student is assigned a project that has achievable goals;
  • Each student is supervised by a lawyer;
  • Students are introduced to the workings of the legal profession;
  • The student must undertake the project without fee;
  • The primary focus of the programme is community service.

Conclusion

This article has sought to highlight the importance and value of the tradition of pro bono legal service and the desirability of looking again at the need and scope for a more organised approach to pro bono work in Ireland.

The current recessionary times may seem, at first sight, to provide an unfavourable backdrop against which to explore how pro bono might be developed in Ireland. Yet, it is precisely such times which draw attention to the need for, and potential value of, structured, well-organised pro bono legal services. On the one hand, a range of problems consequent on the economic crisis will, for some people, mean a need for legal advice and support – but the cost of such services may be well beyond what they can afford. On the other hand, a widespread rise in unemployment will inevitably mean that a significant number of well-qualified lawyers will find themselves without work. Many would welcome the opportunity to utilise and develop their skills in a structured pro bono system during this temporary interruption in their professional life.

It is interesting to note that the American Bar Association Center for Pro Bono has drawn attention to the fact that both newly-qualified and experienced lawyers may be unable to obtain employment during the current economic crisis, and it has sought to encourage firms and lawyers to consider the possibilities offered by pro bono work in the face of this difficult situation.52

This, then, is an opportune time for Ireland’s professional legal bodies, and institutions involved in legal education, to seriously examine the possibilities for establishing pro bono service on a more organised basis, which could provide supports and back-up for practitioners and safeguards for clients and lawyers. The findings of the 2001 Task Force Report are a very useful starting point for discussion of how Ireland might move towards a more structured approach to the provision of pro bono services.

We in Ireland also have the advantage of being able to mimic and adapt the various structures and initiatives existing in countries which have an established framework for supporting pro bono work. The task might be summed up as building on our tradition of charity and solidarity, in the context of current circumstances, in order to respond to the never-ending challenge of ensuring access to justice for all.

Notes

1. Exodus 23:6: ‘Do not deny justice to your poor people in their lawsuits’; Leviticus 19:15: ‘Do not pervert justice; do not show partiality to the poor or favouritism to the great, but judge your neighbour fairly’(International Bible Society, Holy Bible, New International Version, 1984).

2. ‘Stand out firmly for justice ...’ Quran, 4:123; ‘Be just, that is next to Piety’, Quran, 5:8.

3. Shamia Ahmend, ‘Charity in Islam’, New Statesman, 29 April 2009.

4. Micah 6:8.

5. Pro Bono Law Alberta at http://www.pbla.ca/about/

6. See ‘General Observations’ on definitions at International Bar Association website on pro bono at: http://www.internationalprobono.com/resources/

7. Pro Bono Law Alberta at http://www.pbla.ca/about/

8. Pro Bono Declaration of Americas at http://www.internationalprobono.com/resources/. See a commentary on definitions in National Pro Bono Resource Centre, Mapping Pro Bono Law, Sydney: National Pro Bono Resource Centre, May 2007. See: http://www.nationalprobono.org.au

9. See American Bar Association website at: http://www.abanet.org/legalservices/probono/; many State Bars in the US explicitly refer to pro bono activities in their websites.

10. American Bar Association, Standing Committee on Pro Bono and Public Service and the Center for Pro Bono, ABA Model Rule 6.1: Voluntary Pro Bono Publico Service, at http://www.abanet.org/legalservices/probono/ rule61.html

11. Deborah L. Rhode, Pro Bono in Principle and Practice, Stanford Law School Research Paper, No. 66, June 2003, see fn. 163 and fn. 164.

12. Jeanne Charn and Richard Zorza, Civil Legal Assistance for All Americans, Bellow-Sacks Access to Civil Legal Services Project, 2005, p. 41ff (available at: http://www.courtinfo.ca.gov).

13. Deborah L. Rhode, op.cit., pp. 66–7.

14. Ibid.

15. See http://www.law.harvard.edu/academics/clinical /probono/index.html; http://www.probonoinst.org/ about.php; Public Interest Resource Center http://law.fordham.edu/pirc.htm and Feerick Center for Social Justice http://law.fordham.edu/ihtml/; http://www.bc.edu/schools/law/services/academic/programs/probono/requirements.html; Access to Justice Institute http://www.law.seattleu.edu/x1864.xml

16. Deborah L. Rhode, op.cit. p.19, fn. 96.

17. See website http://www.streetlaw.org/

18. See David McQuoid Mason in ‘Teaching Social Justice to Law Students through Streetlaw’, 2002 (published on web http://snap.archivum.ws/dspace/bitstream/10039/6560/8/David_McQuoid+-+Teaching+Social+Justice.pdf). See also, ‘Teaching Social Justice to Law Students through Community Service: The South African Experience’, in F. Iya, N.S.Rembe and J Baloro (eds.), Transforming South African Universities: Capacity Building for Historically Black Universities, Pretoria: African Institute of South Africa, 2000.

19. Streetlaw Programme Handbook, 2006, p. 5. This is a generic text to be adapted to local situation; see: www.probonogroup.org.uk/lawworks/law_schools/Streetlaw%20Handbook.doc

20. See LawWorks website at http://www.lawworks.org.uk

21. See: http://juniorlawyers.lawsociety.org.uk/pro-bono-2008

22. Law Society Gazette (UK), 13 November 2008.

23. Personal conversation with Law Society of England and Wales.

24. Paul Marsh, ‘Pro Bono Week’, Law Society Gazette (UK), 6 November 2008.

25. For further details, see http://www.probonolawyer.eu

26. See CBA website at http://www.cba.org/CBA/groups/probono/

27. See websites of following provinces: British Columbia, at http://www.probononet.bc.ca/ ; Ontario, at http://www.pblo.org/ ; Saskatchewan, at http://www.pblsask.ca/

28. National Pro Bono Resource Centre, Mapping Pro Bono in Australia, Sydney: National Pro Bono Resource Centre, 2007; see: http://www.nationalprobono.org.au

29. Ibid., p. 81.

30. Ibid., p. 102.

31. Ibid., p. 104 ff.

32. At http://www.pilch.org.au/

33. Yori Geiron, President of the Israel Bar, ‘Pro Bono in Israel’, presented at The Madrid Meeting, ‘The Legal Profession in a World without Borders’, 3–4 October 2008, College of Advocates, Madrid, at http://www.icam.es/docs/ficheros/200810030007_6_2.pdf

34. Ibid. 35 Ibid.

36. PILN Bulletin, 7 May 2009 (Bulletin on Public Interest Law issued by FLAC); see also http://www.lawfphil.net/courts/bm/bm_2012_2009.html

37. American Bar Association, Rule 6.1 at http://www.abanet.org/legalservices/probono/rule61.html

38. See website of LawWorks at http://www.lawworks.org.uk/

39. See: http://www.internationalprobono.com/resources/

40. See website of LawWorks at http://www.lawworks.org.uk/

41. ‘Pro Bono Declaration for the Americas’, http://www.internationalprobono.com/resources/

42. Access at http://www.internationalprobono.com/resources/

43. Ibid.

44. See http://www.lawlibrary.ie

45. John Costello, ‘Why We Need Solicitors’ Pro Bono Scheme’, Law Society Gazette (IRL), Vol. 92 (7) August/September 1998, pp. 5–6.

46. Ibid.

47. Law Society Pro Bono Task Force Report June 2001, Dublin: Law Society of Ireland, 2001.

48. See http://www.flac.ie

49. See http://www.flac.ie/publicinterest/

50. See NUIG Law School website at http://www.nuigalway.ie/law

51. National Pro Bono Resource Centre (at: http://www.nationalprobono.org.au). Other details considering placements, supervisions and benefits of pro bono within a university setting are found at University of Western Australia, Pro Bono Students Australia http://uws.clients.squiz.net/law/sol/associated_bodies/pro_bono_students_australia

52. http://www.abanet.org/legalservices/probono/home.html (accessed 4 November 2009).

Patrick Hume SJ is a solicitor and works in the Jesuit Centre for Faith and Justice. He has worked with the Jesuit Refugee Service in Uganda and gives assistance to migrants in Jeanne Boyle and Co., Solicitors, Dublin.

 

When Ireland became an independent State it inherited some appallingly bad housing conditions. This was most notoriously the case in the severely deprived areas of inner-city Dublin, but inadequate and overcrowded housing which lacked basic facilities was also prevalent in towns and villages and rural areas around the country. Read full editorial

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