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Legal Profession and Legal Aid (Scotland) Act (asp 5) which received Royal Assent on 19 January 2007

Part 2 – Conduct Complaints: Other Matters

Section 47: Conduct complaints: duty of relevant professional organisations to investigate etc.

88.Section 47 places a duty on professional organisations to investigate a conduct complaint remitted to them by the Commission. After investigation professional organisations are required to make a written report to the complainer and the practitioner of the facts of the matter as found by the organisation and the action the organisation proposes to take, or has taken, in the matter.

89.Professional organisations are required to ensure that their procedures for dealing with conduct complaints do not conflict with their duties under section 24(4) or (5) to have regard to the conclusions and recommendations so far as relating to the organisation set out in the Commission’s reports on handling complaints.

Section 48: Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations

90.Section 48 gives powers to relevant professional organisations to examine documents and demand explanations from a practitioner, a practitioner’s firm or an employing practitioner where they are satisfied they need to do so, either to investigate a conduct complaint or review a decision by them in relation to a conduct complaint. The procedure set out requires the organisations to give notice in writing to the practitioner requiring the production or delivery to them of documents relevant to the complaint, or an explanation regarding the matters to which the complaint relates. The documents in question are those listed in subsection (3).

91.The professional organisations may also give notice to the complainer requiring the production or delivery of books, accounts, deeds, securities, papers or other documents in the possession or control of the complainer; or an explanation regarding the matters to which the complaint relates.

92.Subsection (6) introduces schedule 4 which sets out further powers of relevant professional organisations in this context.

Section 49: Conduct complaints: financial impropriety

93.Section 49 provides powers for a relevant professional organisation to apply to the court for an order freezing bank accounts held in the name of a practitioner or firm where it has reasonable cause to believe that the practitioner or firm has been guilty of financial impropriety. No payment is to be made from such bank accounts without the leave of the court.

94.This provision thus extends to all the relevant professional organisations the statutory power to freeze bank accounts which was previously only available to the Law Society of Scotland (under section 38 of the Solicitors (Scotland) Act 1980).

Section 50: Power of relevant professional organisations to recover certain expenses

95.Section 50 entitles relevant professional organisations to recover from practitioners any expenditure they might reasonably incur in respect of action taken on their part to obtain documents or explanations. Notice must have been served under the terms set out in schedule 4.

Section 51: Powers in relation to documents and information from third parties

96.Section 51 allows a professional organisation to apply for a court order where a person who is a third party and not a party to the complaint in question refuses or fails to produce documents or information which the professional organisation has requested.

97.Subsection (3) extends to relevant professional organisations the same powers that the Commission has in sections 19(3) to (7) to seek a court order in similar circumstances. Such an order will only be granted where the court considers that the material is relevant to the investigation or report concerned and disclosure would be in the public interest. The law of legal professional privilege is left unaltered and will continue to apply, so a third party lawyer will not be forced to disclose confidential communications with a client unless that client consents.

Section 52: Restriction upon disclosure of information: relevant professional organisations

98.This section prohibits relevant professional organisations, any of their employees or any person acting on their behalf from disclosing information contained in a conduct complaint or obtained in the course of considering or investigating such a complaint – except for the purpose of enabling the professional body to exercise any of its functions in relation to such a complaint or where disclosure is required by law. Any person employed by or acting on behalf of a professional organisation who knowingly discloses information obtained is guilty of an offence and liable to be fined.

Section 53: Unsatisfactory professional conduct: solicitors

99.Section 53 amends the Solicitors (Scotland) Act 1980 (“the 1980 Act”) to create duties of and powers for the Council of the Law Society of Scotland and the Scottish Solicitors Discipline Tribunal in relation to unsatisfactory professional conduct by a solicitor. The expression “unsatisfactory professional conduct” is defined by section 46 in relation to a solicitor to mean “professional conduct which is not of the standard which could reasonably expected of a competent and reputable solicitor, but which does not amount to professional misconduct.”

100.Section 53 inserts new sections 42ZA, 42ZB, 53ZA, 53ZB, 53ZC, 54A and 55A in the 1980 Act.

Section 42ZA of the 1980 Act

101.New section 42ZA is inserted into the 1980 Act to provide that when a complaint of unsatisfactory professional conduct is remitted to the Council by the Commission under section 6(a) or 15(5)(a) of the Act, the Council must investigate the complaint and, having given the solicitor an opportunity to make representations, make a determination. In considering the complaint, the Council may take account of the outcome of any previous unsatisfactory professional conduct or professional misconduct complaint against the solicitor determined by it, the court or the Scottish Solicitors Discipline Tribunal. The Council must similarly investigate and determine (after giving the solicitor the opportunity to make representations) complaints remitted to it by the Scottish Solicitors Discipline Tribunal under new section 53ZA of the 1980 Act.

102.Where the Council upholds an unsatisfactory professional conduct complaint, it must censure the solicitor. The Council may also take any of the following steps which it considers appropriate: (a) where the Council considers that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, direct the solicitor to undertake such education and training as regards the law or legal practice as it considers appropriate; (b) direct the solicitor to pay a fine not exceeding £2,000; and (c) where the Council considers that the complainer has been directly affected by the conduct, direct the solicitor to pay the complainer compensation of up to £5,000.

103.The Council may not direct payment of a fine where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of at least 2 years. This is akin to the double jeopardy rule. In any circumstances where a fine is applied, it will be treated as if it were a fine imposed in the High Court for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 and will thus be payable to and recoverable by the Treasury.

104.The Council is required to intimate its determination and any direction or censure to both the complainer and the solicitor by sending them a copy. The Council must also give them reasons for its determination and any direction it makes.

105.The solicitor has a right of appeal to the Scottish Solicitors’ Discipline Tribunal against the Council’s determination or direction.

106.The complainer has a right to appeal to the Tribunal within 21 days against (a) a determination by the Council not to uphold the complaint , (b) a decision by the Council when upholding the complaint not to direct the solicitor to pay compensation, or (c) the amount of compensation which the Council has directed the solicitor to pay.

Section 42ZB of the 1980 Act

107.This new section requires the Council to monitor compliance with directions issued by it. When a direction is made by the Council or varied/ confirmed by the court or Tribunal, the Council must request from the solicitor an explanation of the steps which he or she has taken to comply with the direction. The solicitor must respond to the Council within 21 days of the date specified in notice. The request will however be suspended for the duration of any appeal by the solicitor or the complainer.

Section 53ZA of the 1980 Act

108.New Section 53ZA provides that where the Tribunal has considered a complaint of professional misconduct and does not uphold the complaint and considers that the solicitor may be guilty instead of unsatisfactory professional conduct, then the Tribunal must remit the complaint to the Council. In so doing, the Tribunal may make available to the Council its findings in fact.

Section 53ZB of the 1980 Act

109.This new section sets out the powers of the Scottish Solicitors’ Discipline Tribunal in relation to appeals made to it by solicitors or complainers against Council determinations or directions in unsatisfactory professional conduct cases, as follows.

110.Where a solicitor appeals a Council determination upholding a complaint or appeals a consequent direction requiring remedial education or training or the payment of a fine or compensation, the Tribunal may (a) quash or confirm the determination being appealed against (and if it quashes the determination it must also quash the censure which accompanied it); (b) quash, confirm or vary the direction being appealed against; (c) direct the solicitor to undertake such education or training as regards the law or legal practice as the Tribunal considers appropriate; (d) fine the solicitor an amount not exceeding £2000; or (e) where the Tribunal considers the complainer to have been directly affected by the conduct, direct the solicitor to pay compensation of up to £5,000 in respect of resulting loss, inconvenience or distress.

111.Where a complainer appeals a Council determination not to uphold a complaint, the Tribunal may quash the Council determination and uphold the complaint; may direct the solicitor to pay compensation of up to £5,000 for loss, inconvenience or distress, where the Tribunal considers the complainer to have been directly affected by the conduct; or may confirm the determination.

112.Where the Council upholds a conduct complaint but does not direct the solicitor to pay compensation, a complainer may appeal to the Tribunal against the Council’s decision not to direct payment of compensation. The Tribunal may, where it considers the complainer to have been directly affected by the conduct, direct the solicitor to pay compensation of up to £5,000 for loss, inconvenience or distress.

113.Where a complainer appeals to the Tribunal against the amount of compensation which the Council has directed a solicitor to pay, the Tribunal may quash, confirm or vary the direction being appealed against.

114.The Tribunal may not direct the solicitor to pay a fine where in relation to the subject matter of the complaint the solicitor has been convicted of an act involving dishonesty and sentenced to a term of imprisonment of at least two years. This is akin to the double jeopardy rule.

115.Any fine imposed by the Tribunal is to be payable to and recoverable by the Treasury.

116.A direction of the Tribunal under the section is enforceable in the same manner as an extract registered decree arbitral in favour of the Council.

Section 53ZC of the 1980 Act

117.New section 53ZC provides that, where a solicitor fails to comply with a direction given by the Council, the direction, as confirmed or varied on appeal by the Tribunal or court, is to be enforced in like manner as an extract decree arbitral in favour of the Council bearing a warrant for execution issued by a sheriff court.

Section 54A of the 1980 Act

118.New section 54A provides a right of appeal to the Court of Session for a solicitor or complainer in respect of decisions made by the Tribunal in unsatisfactory professional conduct cases.

119.A solicitor is provided with a right to appeal against decisions by the Tribunal under new section 53ZB(1), (2), (3) or (4). So for example, a solicitor may appeal against a Tribunal decision confirming the Council’s upholding of the complaint or the Tribunal’s decision itself to uphold the complaint (where the Council did not uphold it); a Tribunal decision confirming or varying a Council direction, or itself imposing a direction, as to education or training, a fine or payment of compensation.

120.A complainer has the right to appeal against the following decisions by the Tribunal – a decision quashing the Council’s determination to uphold the complaint or confirming the Council’s decision not to uphold the complaint; quashing the Council’s direction that the solicitor pay compensation or varying the amount the Council directed to be paid; confirming the Council’s decision not to direct payment of compensation; itself directing or not directing the solicitor to pay compensation (where the Council did not direct payment).

121.Having heard an appeal by the solicitor or complainer, the court is empowered by new section 54A to give such directions in the matter as it thinks fit, including directions as to the expenses of the court proceedings or any order by the Tribunal relating to expenses. The decision of the court is final.

Section 55A of the 1980 Act

122.New section 55A supplements the general power in new section 54A(4). It provides the court with the following powers in respect of unsatisfactory professional conduct by a solicitor: (a) to fine the solicitor an amount not exceeding £2000; (b) where the court considers the complainer to have been directly affected by the conduct, to direct the solicitor to pay compensation of up to £5,000 for loss, inconvenience or distress resulting from the conduct; and (c) to find the solicitor liable in any expenses which may be involved in the proceedings before it. The decision of the court is final. The maximum level of fine which the court may impose is variable by order by the Scottish Ministers under the negative resolution procedure, in line with inflation. The maximum level of compensation which the court may award is variable under the affirmative resolution procedure following consultation with the Council of the Law Society and such consumer groups as the Scottish Ministers consider appropriate.

Section 54: Unsatisfactory professional conduct: conveyancing or executry practitioners etc.

123.Section 54 amends the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (“the 1990 Act”) to create duties of and powers for the Council and for the Tribunal in relation to unsatisfactory professional conduct by conveyancing or executry practitioners. Unlike the position regarding solicitors, the Council may deal with professional misconduct by these practitioners itself but also has discretion whether to make a complaint to the Tribunal.

124.The expression “unsatisfactory professional conduct” is already defined by section 46 to mean as respects a conveyancing or executry practitioner “professional conduct which is not of the standard which could reasonably be expected of a competent and reputable conveyancing practitioner or, as the case may be, a competent and reputable executry practitioner, but which does not amount to professional misconduct.”

125.Section 54 inserts new sections 20ZA, 20ZB, 20ZC, 20B, 20C, 20D and 20E into the 1990 Act.

Section 20ZA of the 1990 Act

126.Where the Tribunal has considered a complaint of professional misconduct and does not uphold the complaint and considers that the practitioner in question may be guilty instead of unsatisfactory professional conduct, then the Tribunal must remit the complaint to the Council. In so doing, the Tribunal may make available to the Council its findings in fact.

Section 20ZB of the 1990 Act

127.New section 20ZB mirrors new section 42ZA of the 1980 Act (inserted by section 53). Where a complaint of unsatisfactory professional conduct is remitted to the Council by the Commission under section 6(a) or 15(5)(a) of the Act, or by the Tribunal under section 20ZA (2) of the 1990 Act, and the Council has investigated, determined and upheld the complaint, it must censure the conveyancing or executry practitioner. The Council may also take any of the following steps which it considers appropriate: (a) where the Council considers that the practitioner does not have sufficient competence in relation to conveyancing law or legal practice, or as the case may be, executry law or legal practice, to direct the practitioner to undertake such education and training as regards the relevant law or legal practice concerned as it considers appropriate; (b) to direct the practitioner to pay a fine not exceeding £2,000; and (c) where it considers that the complainer has been directly affected by the conduct, to direct the practitioner to pay the complainer compensation of up to £5,000 for loss, inconvenience or distress resulting from the conduct.

128. In considering the complaint, the Council may take account of any previous determination by it, the court or the Tribunal upholding a complaint against the practitioner of unsatisfactory professional conduct. The Council may not impose a fine where, in relation to the subject matter of the complaint, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of at least 2 years. This is akin to the double jeopardy rule. Any fine is to be payable to and recoverable by the Treasury, as if it were a fine imposed in the High Court for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995.

129.The Council is required to intimate its determination and any direction or censure to both the complainer and the practitioner by sending them a copy. The Council must also give them reasons for its determination and any direction it makes.

130.Practitioners are given a right of appeal to the Scottish Solicitors’ Discipline Tribunal against a determination or direction by the Council. Complainers are given a right of appeal to the Tribunal against a Council determination not to uphold a complaint, or against a Council decision not to award compensation or against the amount of compensation awarded.

131.The Scottish Ministers may, after consultation with the Council and such consumer interest groups as they consider appropriate, vary by affirmative order the maximum level of compensation payable. The Scottish Ministers may also, by order subject to negative procedure, adjust the maximum amount of fine in line with inflation.

Section 20ZC

132.New section 20ZC and new section 42ZB of the 1980 Act (inserted by section 53) provide for the Council by notice in writing to require practitioners specified in a direction to give an explanation within 21 days of the notice of the steps taken to comply with that direction. The notice ceases to have effect pending the outcome of any appeal.

Section 20B of the 1990 Act

133.New section 20B and new section 53ZB of the 1980 Act (inserted by section 53) provide powers for the Scottish Solicitors’ Discipline Tribunal in relation to appeals made to it by conveyancing or executry practitioners or complainers against Council determinations or directions made in unsatisfactory conduct cases.

134.Where a conveyancing or executry practitioner appeals a Council determination upholding a complaint or appeals a consequent direction requiring remedial education or training or the payment of a fine or compensation, the Tribunal is given powers (a) to quash or confirm the determination being appealed against (and if it quashes the determination it must also quash the censure which accompanied it); (b) to quash, confirm or vary the direction being appealed against; (c) to direct the practitioner to undertake such education as regards the law or legal practice as the Tribunal considers appropriate; (d) to fine the practitioner a sum of up to £2,000; or (e) where the Tribunal considers the complainer to have been directly affected by the conduct, to direct the practitioner to pay compensation of up to £5,000 in respect of resulting loss, inconvenience or distress. The maximum amounts of the fine and compensation mentioned above may be varied by Scottish Ministers by order.

135.Where a complainer appeals a Council determination not to uphold a conduct complaint, the Tribunal may quash the Council determination and uphold the complaint; may direct the practitioner to pay compensation of up to £5,000 for loss, inconvenience or distress, where the Tribunal considers the complainer to have been directly affected by the conduct; or may confirm the determination.

136.Where the Council upholds a conduct complaint but does not direct the solicitor to pay compensation, a complainer may appeal to the Tribunal against the Council’s decision not to direct payment of compensation. The Tribunal may, where it considers the complainer to have been directly affected by the conduct, direct the solicitor to pay compensation of up to £5,000 for loss, inconvenience or distress.

137.Where a complainer appeals to the Tribunal against the amount of compensation which the Council has directed a practitioner to pay, the Tribunal may quash, confirm or vary the direction being appealed against.

138.The Tribunal may not direct the solicitor to pay a fine where in relation to the subject matter of the complaint the solicitor has been convicted of an act involving dishonesty and sentenced to a term of imprisonment of at least two years. This is akin to the double jeopardy rule. Any fine imposed by the Tribunal is to be payable to and recoverable by the Treasury.

Section 20C of the 1990 Act

139.Where a practitioner fails to comply with a direction given by the Council, new section 20C and new section 53ZC of the 1980 Act (inserted by section 53) provide for the direction, as confirmed or varied on appeal by the Tribunal or the court, to be enforced in like manner as an extract decree arbitral in favour of the Council bearing a warrant for execution issued by a sheriff court.

Section 20D of the 1990 Act

140.Section 20D mirrors section 54A of the 1980 Act and provides a right of appeal to the Court of Session for a conveyancing or executry practitioner or complainer in respect of decisions made by the Tribunal in unsatisfactory professional conduct cases.

  • A conveyancing or executry practitioner may appeal against decisions by the Tribunal under new section 20B(1), (2), (3) or (4) so for example the practitioner may appeal against a Tribunal decision confirming the Council’s upholding of a complaint or the Tribunal’s decision itself to uphold the complaint (where the Council did not uphold it); a Tribunal decision confirming or varying a Council direction, or itself imposing a direction, as to education or training, a fine or payment of compensation.

  • A complainer may appeal against the following decisions of the Tribunal – a decision quashing the Council’s determination upholding the complaint or confirming the Council’s decision not to uphold the complaint; quashing the Council’s direction that the practitioner pay compensation or varying the amount the Council directed to be paid; confirming the Council’s decision not to direct payment of compensation or itself directing or nor directing the practitioner to pay compensation (where the Council did not direct payment).

141.Having heard an appeal by the practitioner or complainer, new section 20D empowers the court to give such directions in the matter as it thinks fit, including directions as to the expenses of the court proceedings or any order by the Tribunal relating to expenses. The decision of the court is to be final.

Section 20E of the 1990 Act

142.Section 20E provides the Court of Session with the following powers in respect of an appeal in relation to unsatisfactory professional conduct: (a) to fine the conveyancing or executry practitioner a sum of up to £2,000; (b) where the court considers the complainer to have been directly affected by the conduct, to direct the practitioner to pay compensation of up to £5,000 for loss, inconvenience or distress resulting from the conduct; and (c) to find the practitioner liable in any expenses which may be involved in the proceedings before it. The decision of the court is to be final. The maximum amounts of the fine and compensation mentioned above may be varied by order by Scottish Ministers subject to parliamentary approval.

Section 55: Report by Commission to Council under section 10(2)(e)

143.Section 10(2)(e) of the Act provides a power for the Commission when upholding a services complaint to make a report to the relevant professional organisation where it considers the practitioner concerned lacks competence in an area of law or legal practice. In view of the responsibility of the professional bodies for legal education and training, the decision on whether or not remedial education or training is actually required rests with the professional organisation.

144.Section 55 inserts provisions into the 1980 Act and the 1990 Act to provide powers for the Council to deal with reports from the Commission indicating that a solicitor or a conveyancing or executry practitioner does not have sufficient competence in relation to any aspect of the law or legal practice.

Sections 42ZC of the 1980 Act and 20ZD of the 1990 Act

145.Where the Council receives such a report about a solicitor, it may direct the solicitor to undertake such education or training as regards the law or legal practice as it considers appropriate in the circumstances. In the case of conveyancing or executry practitioners, the Council’s direction would relate to education or training as regards conveyancing law or legal practice or, as the case may be, executry law or legal practice.

146.The Council must intimate such a direction to the solicitor or the conveyancing or executry practitioner by notice in writing and require the solicitor or conveyancing or executry practitioner to give an explanation within 21 days of the steps taken to comply with the direction. The notice ceases to have effect pending the outcome of any appeal against the direction.

Sections 42ZD of the 1980 Act and 20ZE of the 1990 Act

147.Solicitors or conveyancing or executry practitioners have a right of appeal within 21 days to the Scottish Solicitors’ Discipline Tribunal against such a direction. The Tribunal may quash, confirm or vary the direction. The solicitor or conveyancing or executry practitioner will be able to appeal to the Court of Session against the Tribunal’s decision. The Court will be able to give such directions in the matter as it thinks fit and its decision will be final.

Section 56: Powers to fine and award compensation for professional misconduct etc

148.Section 56(1) amends the 1980 Act to enable the Scottish Solicitors’ Discipline Tribunal to direct a solicitor found guilty of professional misconduct to pay compensation of up to £5,000 to any person the Tribunal considers to have suffered loss, inconvenience or distress as a direct result of the professional misconduct. The Scottish Ministers may, after consultation with the Council and such consumer interest groups as they consider appropriate, vary by affirmative resolution order the maximum level of compensation which the Tribunal may award in such circumstances.

149.Section 56(2) amends section 55 of the 1980 Act to provide that on an appeal relating to a complaint of professional misconduct against a solicitor, the Court of Session may impose a fine of up to £10,000 on the solicitor and order him or her to pay compensation of up to £5,000 to the complainer. The maximum amounts of the fine and compensation mentioned above may be varied by the Scottish Ministers by order subject to parliamentary approval.

150.Section 56(3) amends section 20(2) of the 1990 Act to allow the Council to direct the payment of compensation of up to £5000 to a complainer in cases where a conveyancing or executry practitioner has been found guilty of professional misconduct or where the practitioner has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing and/ or executry services. Similarly, the Tribunal is also now empowered to direct payment of compensation of up to £5,000 in cases of professional misconduct. The maximum amounts of the compensation may be varied by the Scottish Ministers by order after consultation with the Council and such consumer interest groups as they consider appropriate, and subject to parliamentary approval. Section 20(2) is also amended to allow the Council to impose a fine of up to £2000.

Section 57: Review of and appeal against decisions on remitted conduct complaints: cases other than unsatisfactory professional conduct

151.Section 57 inserts new provisions into section 54 of the 1980 Act which set out rights in relation to appeals to the Court of Session against decisions of the Scottish Solicitors’ Discipline Tribunal in conduct cases other than unsatisfactory professional conduct, i.e. professional misconduct and failure by incorporated practices to comply with any provisions of the Solicitors (Scotland) Act 1980.

152.Section 57(1) amends section 54 of the 1980 Act to set out in detail the rights of the different parties involved to appeal from the Tribunal to the Court of Session. As well as the practitioner, the Council of the Law Society is able to appeal, although not against any award of compensation to the complainer. The complainer may now appeal against a decision refusing to award compensation or awarding an amount of compensation regarded by the complainer as insufficient. Provision is also made for an appeal by the practitioner against any ruling that the restriction, suspension or revocation of an investment business certificate takes effect immediately from the date on which the Tribunal’s order is intimated to the practitioner.

153.Section 54(1) of the 1980 Act cannot be repealed in the Act because this provision applies to reserved as well as devolved legal services. Repeal will ultimately be achieved through the Legal Services Bill introduced in the UK Parliament on 23 November 2006. In the meantime, section 54(1) is restricted to cases relating to reserved legal services and activities.

154.Section 57(2) makes corresponding provision in relation to professional misconduct appeals involving conveyancing and executry practitioners. Subsection (2) takes account of the fact that under the 1990 Act there are different routes for making disciplinary decisions against such a practitioner : either a decision by the Council of the Law Society, which may be reviewed by the Council and then appealed to the Scottish Solicitors’ Discipline Tribunal and onwards to the Court of Session; or a first instance decision by the Tribunal itself, with onward appeal to the court. The changes made by section 57(2) are integrated into this existing structure.

155.Subsection (2) also includes provision for appeals against findings that the circumstances in section 20(1)(d) of the 1990 Act apply. Section 20(1)(d) is peculiar to the 1990 Act and the circumstances are that the Council is satisfied that a conveyancing or executry practitioner has been convicted of a criminal offence rendering him or her no longer a fit and proper person to offer conveyancing or executry services. Currently such a finding cannot be appealed (although the steps taken on the back of such a finding can).

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