Managing Client Trusts Accounts

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1 Managing Client Trusts Accounts Rules, Regulations and Common Sense This booklet has been prepared by the Washington State Bar Association as a guide for both new and experienced lawyers in dealing with trust accounting questions. Our purpose is to provide you with the basic rules, highlight the areas for which there are no absolute rules and that will always require your best judgment, and dispense some practical experience provided by years of answering lawyers' questions. Whenever you are dealing with trust accounts and questions arise, please do not hesitate to call us at or or us at questions@wsba.org. Introduction The trust accounting rules currently in effect for Washington lawyers are based on RPC 1.14 which became effective September 1, RPC 1.14 imposes a strict fiduciary standard that all funds received by a lawyer which belong wholly or in part to the client must be maintained in an interest-bearing trust account while in the lawyer's possession. The trust account must be segregated from any lawyer funds, be maintained in a "qualified public depository," and generate interest for the benefit of either the client or the Legal Foundation of Washington (LFW). The client trust account which generates interest on behalf of the LFW is frequently referred to as an IOLTA (Interest on Lawyers' Trust Accounts) account. In addition to RPC 1.14, there have been several formal Ethics Opinions issued related to specific questions which have arisen about the trust accounting rules. Both RPC 1.14 and the related Ethics Opinions must be taken into consideration whenever a question arises regarding the handling of client funds. The responsibility for compliance cannot be delegated to others. Violations of these rules may result in disciplinary action, including possible disbarment. These rules have been implemented in an attempt to protect both clients and lawyers. The client must feel confident when entrusting money to his or her lawyer that the funds will be maintained in a safe place, fully accounted for, and promptly remitted to the client if no longer required. The lawyer who conscientiously follows the rules is maintaining insurance against false claims of financial improprieties with client funds. This should create a "win-win" situation for both you and your clients. Legal Foundation of Washington As noted in the introduction, client trust accounts must generate interest for either the client or the Legal Foundation of Washington (LFW). LFW is a non-profit organization, separate and distinct from the Washington State Bar Association (WSBA). The LFW was incorporated at the direction of the Washington State Supreme Court as part of the implementation of RPC It is governed by a nine-member Board of Trustees, of which three trustees are appointed by the Supreme Court, three by the Governor of Washington, and three by the WSBA Board of Governors. The Foundation's purpose as described in its mission statement is: The Legal Foundation is dedicated to the provision of equal access to the justice system by funding legal and educational programs for low-income persons through the fair and efficient administration of IOLTA and other available funds.

2 The Legal Foundation reports its activities annually to the Supreme Court. In addition, its published annual report is available upon request. If you have questions regarding bank problems you may contact the Legal Foundation of Washington at the following address or telephone number: Getting Started Do I need an IOLTA account? Legal Foundation of Washington 1325 Fourth Ave, Ste 1335 Seattle WA RPC 1.14(c)(1) states: "A lawyer who receives client funds shall maintain a pooled interestbearing trust account for deposit of client funds that are nominal in amount or expected to be held for a short period of time." Therefore, any lawyer who expects to be handling client funds should open an IOLTA account. A law firm may open one account for all lawyers in the firm. If you are not in private practice or your practice is of a nature that you do not expect to receive client funds, you need not open an IOLTA account. Note: Many financial institutions charge the LFW a monthly service charge for each IOLTA account they handle. Do not open an IOLTA account unless you need one, and close any unused IOLTA accounts. How do I open an IOLTA account? Decide which financial institution you want to use for the account. RPC 1.14(c) states that the account may be "in any bank, credit union or savings and loan association, selected by a lawyer in the exercise of ordinary prudence, authorized by federal or state law to do business in Washington and insured by the Federal Deposit Insurance Corporation, the National Credit Union Share Insurance Fund, or the Federal Savings and Loan Insurance Corporation, or which is a qualified public depository as defined in RCW (1)." In addition, Rule 15.4 of the Rules for Enforcement of Lawyer Conduct requires the account to be in a financial institution which has filed an agreement with the Disciplinary Board "to report to the Board in the event any properly payable instrument is presented against a lawyer trust account containing insufficient funds, whether or not the instrument is honored." Most financial institutions in Washington meet these requirements. If you have any question whether the financial institution you have chosen is included in the list of approved qualified public depositories, call the WSBA audit department at or check the list on the WSBA website ( Note: Many lawyers, for convenience choose to use the financial institution at which they do their other banking for their IOLTA account. Some, however, deliberately use a different bank so that there can be no question of inadvertently mixing their general account transactions with the trust account.

3 Give the bank instructions that you want to open an IOLTA account. Each financial institution has its own requirements for opening an account. You should make sure that the account is clearly identified as a client trust account and that it bears the Legal Foundation's tax identification number, The WSBA has a sample form "Request to Establish an IOLTA Account" available on request if your financial institution does not have a preprinted form. Order checks and deposit slips. The checks and deposit slips for your IOLTA account should be clearly labeled "Client Trust Account." In addition, it is a good idea to have the checks a different color than the checks used for your general business account. Both of these details may prevent the incorrect use of the trust account in the future. The cost of printing checks and deposit slips is your responsibility. You may want to make an initial deposit to the trust account in an amount sufficient to cover this cost. Your other option is to have this cost charged to your general account. Under no circumstances should it be deducted from client funds in the trust account. Day-to-Day Operation Since you cannot write a trust account check until you have made a deposit and the deposited items have cleared the banking system, the best place to start this discussion is with what should and should not be deposited to the client trust account. What do I deposit to the IOLTA account? RPC 1.14 states: "All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in RPC 1.14(c), and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: 1. Funds reasonably sufficient to pay bank charges may be deposited therein. 2. Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein " This simple concept, that client funds must be deposited to the client trust account and lawyer funds must never be deposited to the client trust account, gets complicated when put into practice. Your firm will receive funds from many different sources and for many different purposes. To decide if these funds must be deposited to a trust account, you must determine if the client still has an ownership interest in any portion of the funds when you receive them. Some cash receipts are easy to identify: a. If you have sent the client a billing statement for legal services performed and the client gives you a check in the amount of the billing statement, these are clearly earned fees and must be deposited to your general business account. b. If your client gives you a cost advance to be disbursed on his/her behalf as costs related to litigation are incurred, these funds must be deposited to a client trust account. Other funds may not be so easy to classify. Some common problem areas are:

4 Client Overpayments - It is not uncommon for clients to overpay their account. Such payments fall into the category of funds "belonging in part to the client and in part presently or potentially to the lawyer." When a client overpayment is received, you have only two options: you may return the client's payment to them requesting it be reissued in the correct amount, or you may deposit the payment in the client trust account. If you deposit the funds in the client trust account, the earned portion of the payment should be promptly removed from the trust. The remaining balance should either be refunded to the client or, if the client so chooses, it can be held in trust to apply to future services. Under no circumstances is it permissible to deposit client overpayments to the general business account. Note: If client overpayments are a frequent event, you may want to review your billing statement to determine if the format of the statement is confusing. Some billing programs do not clearly differentiate between the current billing amount and the total client balance to date. Lawyer's Personal Business Transactions - On occasion you may come into the possession of funds from sources outside of your legal practice. Examples of these funds include security deposits on rental property you own, funds from real estate transactions in which you have a personal interest, or cookie sale proceeds from your daughter's Girl Scout troop. Under no circumstances should these funds be deposited to the client trust account. You must develop a method of clearly identifying the source of funds, both by client name and purpose, and communicating this information to anyone handling the cash receipts or the accounting for it, whether that person is another lawyer in your office, your legal assistant, the office bookkeeper, or the trust account auditor who may appear five years from now. This identification must be done prior to depositing it in the bank account to ensure that client funds are properly deposited to the client trust account and lawyer funds are deposited to the general business account. When should client funds be deposited in a trust account bearing interest to the client's benefit instead of the IOLTA account? RPC 1.14(c)(3) states that in determining whether to deposit client funds to the IOLTA account or a trust account with interest accruing to the client's benefit, "a lawyer shall consider only whether the funds to be invested could be utilized to provide a positive net return to the client." A "positive net return" means that the interest the account would earn exceeds the cost of establishing and maintaining the account. The cost of establishing the account may include a charge for your time involved in opening the account, in addition to any bank charges. The cost of maintaining the account would include any monthly bank service charges and any charges for preparation of tax reports to the client for interest earned. How do I calculate the positive net return? Since the interest earned is a function of the amount deposited, the interest rate, and the length of time on deposit, you must include all of these factors in your computation of the positive net return. The formula for computing interest is: Interest = Principal X Interest Rate X (# Days Deposited/365 Days) For example, a $5,000 deposit at 4% interest for one month would earn $16.67 in interest. Once this amount is determined, then you must determine what it costs to establish and maintain the account to compute the net return. If it costs $50 in firm time to open the account and the bank charges $7.50 a month to maintain the account, then there is no

5 positive net return. ($ $50 - $7.50 = -$40.83) However, if these same funds are to be held for one year, they would generate a positive net return of $60 for the client's benefit. (Interest of $200 - $50 firm time 12 months X $7.50 bank charges = $60). You must make this computation whenever you accept client funds that could potentially generate a positive net return. In addition, you must review your initial decision as circumstances change. If you accepted the $5,000 above thinking it would be on deposit one month or less, but circumstances subsequently changed resulting in significantly more time before they could be distributed, you must recompute the potential positive net return. If this new computation shows the client would benefit, you must transfer the funds to an account bearing interest for the client's benefit. What type of account do I use so that my client receives the interest? RPC 1.14 designates two types of accounts which may be used for client funds which will accrue interest for the client's benefit. It can either be a separate trust account for the benefit of that client alone or it can be a pooled trust account "with a sub-accounting that will provide for computation of interest earned by each client's funds and the payment thereof to the client." Separate accounts require more time to set up and can be a nuisance by requiring lots of individual checks and deposit slips. They do have the advantage of accumulating all of the account information in one place and simplifying the tax reporting by having a Form 1099 for each account prepared by the financial institution. A pooled trust account with a subaccounting eliminates the setup time since several clients may be combined into one account, but the sub-accounting and tax reporting may be time consuming depending on the activity in the account. Note: Some financial institutions offer a pooled interest-bearing account that provides for allocation of interest to each participant in the account. Usually there is a nominal fee to add a client's name and taxpayer identification number to the account, only one set of signature cards for the entire account, and all tax reporting to the individual clients is done by the financial institution. The disadvantage of this type of account is that the account generally does not provide for withdrawals by check so that a multiple participant account may not be practical in all situations. What if my client does not want to earn interest? You may have clients who do not want to earn interest on their trust account funds. In this situation it is acceptable to deposit the funds to the IOLTA account. You must, however, document the reasons the funds have not been put in an account for the client's benefit and preferably have the client's written acknowledgment that this issue was discussed with them and they directed the deposit to the IOLTA account. How do I disburse funds from a client trust account? Funds may only be disbursed from either the IOLTA or a separate client trust account based on the understanding between you and your client. While this may be a verbal agreement, it is preferable (mandatory in contingent fee cases) to have a written agreement acknowledging receipt of the funds and designating their purpose. You should disburse trust account funds promptly after the entitlement to the funds is established. However, such disbursements should be made only after the deposit which created the funds has cleared the banking system, unless you have a written arrangement

6 with your financial institution guaranteeing the collection of the funds. (See Ethics Opinion 177). When a deposit item has cleared the banking system it becomes collected funds. Do not confuse collected funds with available funds. Federal Reserve Regulation CC requires banks to make funds available for withdrawal frequently before they are collected funds. The only items which are recognized as collected when deposited are cash and wire transfers. All other deposit items will have varying times for collection; you need to check with your bank to determine the length of time you need to wait before making a disbursement. You may never remove funds from trust without being able to document undisputed entitlement to those funds. If the client funds in trust are understood to be an advance fee deposit, such fees must be promptly removed from the trust account after the client has had an opportunity to review the billing to which they relate. Should a client dispute the billing, the disputed portion of the fee must remain in trust until the dispute is resolved. Disbursements on behalf of a client may never exceed the amount that the client has on deposit in the trust account. Effectively by doing this you are using one client's funds on behalf of another client. This is considered a violation of Ethics Opinion 174 and may subject you to disciplinary action. Reporting to Clients RPC 1.14(b)(3) states: "A lawyer shall maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his or her client regarding them." In addition, section (b)(1) requires the lawyer to "promptly notify a client of the receipt of his or her funds, securities, or other properties." The reporting of this activity is not optional; it is required. The form of reporting trust account activity to a client, however, is done in a variety of ways. The method used is usually determined by the source of the funds held in the trust account. Activity relating to fee and cost advances should be reported on your billing statement to your client. The information reported should, at a minimum, include the balance in trust at the beginning of the reporting period, the source and amount of any additions to the trust, the description and amount of any disbursements from the trust, and the balance in the trust at the statement date. If the billing statement is going to be paid from the trust account unless the client objects, a statement noting this should appear on the billing statement. Note: Some computerized billing programs do not provide for reporting the trust account activity on the billing statement. Providing this information to the client is so important that, if necessary, it should be manually inserted into the billing statement or a copy of the client's trust ledger attached to the billing summary. An accounting of trust account activity relating to settlement proceeds should be made to the client showing the source and amount of funds received and the actual distribution of funds. If legal fees are disbursed from the settlement proceeds based on a contingent fee agreement, there must be a written schedule of receipts and disbursements provided to the client. If any funds remain in trust at the date of the report, the balance remaining and the purpose for its retention should be indicated on the report. If funds are held in trust on a long-term basis without other activity that would generate a billing statement or settlement accounting, a periodic report to the client of these funds should be made. The purpose of this is two-fold: it reminds the client that the funds are there and allows you to stay in contact with the client. If there is not a specific reason to hold these funds in the trust account, they should be refunded to the client.

7 Record keeping for Client Trust Accounts RPC 1.14(b)(3) states: "A lawyer shall maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his or her client regarding them." This makes the development and maintenance of an adequate record keeping system not only a good business practice, but also a required practice under RPC Account Books Whether you use a manual or automated accounting system, the minimum information produced must document: a. The balance in the trust account at all times; b. The transactions affecting each client balance; and c. The exact ownership of all funds in the trust account. The minimum in account books which you must maintain in order to provide the above information would be a checkbook register and individual client summaries. A. Checkbook Register The checkbook register should be completed for both deposits and checks showing: 1. Date received or issued 2. Payor/payee 3. The applicable client/matter 4. The amount of the deposit or the check 5. The running balance in the account Each entry in the check register should be supported by a copy of either the deposit slip or check copy. These are called source documents and must be retained as part of your accounting records. The deposit slip should identify the items deposited by client. If possible, it is helpful to retain copies of the checks being deposited with the deposit slip. These copies can be invaluable in the future if any question arises about the source of funds being deposited. A copy of each check issued should also be retained. The check copy should have a reference to the client and the item being paid on either the check's face or voucher portion. It is normal practice to keep these copies in numerical order. Naturally, you must keep the document (billing summary, settlement statement, third party invoice, etc.) which supports the cash disbursement.

8 B. Client Transaction Summary The information in the checkbook register should be transferred by client to an individual client transaction summary immediately. The individual client summary should contain the same information as the shown in the checkbook register, except the running balance would be for that client only. The total of the individual client summaries must equal the balance in the checkbook register. Note: There are a variety of formats available for use as a checkbook register and individual client summaries. The checkbook register could be the one provided by the bank, from an office supply store, a computer spreadsheet, or from your computer accounting system. Likewise the individual client summary can be maintained on a variety of forms. The important part is not what you use, but that the information is accurate, current at all times, and easy for you to use. Monthly Activities A. Reconcile your check register At the end of each month you will receive your bank statement. The account balance on the bank statement must be reconciled to the account balance shown in your checkbook register. There is usually a form for performing the reconciliation on the back of the bank statement, or you can devise your own format. Differences between the bank statement balance and the checkbook balance should be investigated immediately and corrected either in your records or by the bank. B. Reconcile your individual client transaction summaries As soon as you have completed the bank reconciliation you should make sure the individual client balances total to the reconciled checkbook register balance. The easiest way to do this is simply to make a list of the clients and the balance that shows for each. When the list is complete, total the balances and compare it to the balance in your register. If every item has been posted correctly and all of the math is correct, these two numbers will agree. If they do not agree, it means: (1) you have left a client off the list, (2) the activity during the month was not posted to the client summaries correctly, or (3) you added or subtracted incorrectly. Find the error and correct it immediately. C. Review reconciled client balances Keep both the bank reconciliation and the client balance listing with your client trust records. If more than one lawyer uses the trust account, each lawyer with client funds in the account should review the balances for their clients. This review should be used to determine if the balance on deposit should be applied to billings for services, refunded to the client, or transferred to an individual interest-bearing account. Note: If you have an employee or other person maintain the trust account records, you should review his/her monthly reconciliations. This ensures that they are being prepared and that the client records are accurate. It also emphasizes the importance of maintaining these records accurately and on a timely basis. The fact that a bookkeeper or secretary in your office was maintaining the records will not excuse you from responsibility if they are not handled properly.

9 Record Retention Records relating to the client trust account(s) must be kept for at least five years after termination of the representation. These records, at a minimum, should include: (a) ledger records for all trust accounts required by RPC 1.14 showing, for each separate trust client or beneficiary, the source of all funds deposited, the names of all persons for whom the funds are or were held, the amount of such funds, the descriptions and amounts of charges or withdrawals, and the names of all persons to whom such funds were disbursed; (b) copies of retainer and compensation agreements with clients; (c) copies of accountings to clients or third persons showing the disbursement of funds to them or on their behalf; (d) copies of bills for legal fees and expenses rendered to clients; (e) checkbook registers or check stubs, bank statements, records of deposit, and prenumbered canceled checks or their equivalent; and (f) copies of those portions of clients' files that are reasonably necessary for a complete understanding of the financial transactions pertaining to them. Client Securities and Properties While most of the discussion of RPC 1.14 involves handling client funds and managing the client trust account, this rule also imposes a fiduciary responsibility on the lawyer when holding client securities or other property. Any client property in the lawyer's possession should be clearly labeled as to whom it belongs, segregated from lawyer or law firm property, and kept in a safe deposit box or other safe place. Complete records of client property in your possession must be maintained. Trust Account Audits The Rules for Enforcement of Lawyer Conduct Title 15 provides for the Washington State Bar Association to examine the books and records of any lawyer for the purpose of ascertaining compliance with RPC Title 15 identifies three types of examinations: (a) Random Examination. An examination of the books and records of any lawyer or law firm selected at random. (b) Particular examination ("for cause audit"). An examination of the books and records of a lawyer or law firm based on information received by the WSBA that the lawyer or law firm may not be in compliance with RPC (c) Audit. A re-examination of the books and records of a lawyer or law firm if the results of the random examination or the particular examination warrants expanding procedures to include verification of information provided by the lawyer or law firm. The most frequent type of examination performed by the WSBA is the random trust account examination. Lawyers are chosen at random for the examination. A letter is sent one to two weeks in advance of the date scheduled for the audit giving notice of the examination and

10 indicating the books and records that will be needed by the auditor. If the attorney selected is a member of a firm of lawyers, the audit will cover the entire firm. ELC Title 15 makes it the lawyer's "duty and obligation" to cooperate with the audit process. The cooperation required usually involves assembling the requested records and being available to answer any questions the auditor may have. The focus of most random audits is to obtain assurance that the lawyer is managing the client's funds properly and to make recommendations for improvement where the lawyer's procedures may create an incidence of non-compliance. All random audit reports are reviewed by the Chairperson of the Disciplinary Board. If the auditor has made recommendations to assure compliance with RPC 1.14, those recommendations may be incorporated into an order from the Disciplinary Board Chairperson requiring the lawyer or firm to carry out those recommendations. If the audit report states the lawyer or law firm is in compliance with RPC 1.14, an order will be issued showing no further action is necessary. Rule 15.4 of Title 15 requires any bank, credit union, savings and loan association, or qualified public depository approved as a depository for lawyer trust accounts to notify the WSBA's Office of Disciplinary Counsel either when a IOLTA account has been overdrawn or when a check in an amount that exceeds the account balance has been presented for payment regardless of whether the overdraft is reimbursed. In addition, every lawyer who receives a notice of insufficient funds in the client trust account must notify the Office of Disciplinary Counsel and give a full explanation of the cause of the overdraft. Frequent overdraft notifications may trigger an audit for cause. Frequently Asked Questions What do I do with unclaimed trust account funds? Unclaimed funds result from either a balance left in the trust account for a client you can no longer locate or from uncashed checks which you can not reissue. Any unclaimed trust funds must be dealt with pursuant to the Uniform Unclaimed Property Act, RCW. What do I do with an unidentified balance in the trust account? Occasionally a lawyer ends up with a balance in the trust account which is not identified by client. You must make a reasonable effort to identify these funds. If your best effort to identify the excess funds in trust fail, they must be handled as unclaimed funds. If I am licensed to practice in more than one state, where should I maintain my trust account? The Rules of Professional Conduct Committee has issued an informal opinion that if trust funds accrue as a result of a lawyer's practice under the lawyer's Washington license, then those funds should be handled as required by the Washington rules. For example, if a lawyer who is licensed in both Washington and Oregon were to maintain an office in Portland, but also represent clients in Washington, any client funds related to the Washington matters would have to be maintained in an interest-bearing trust account for the benefit of either the client or the Legal Foundation of Washington at a financial institution authorized to do business in Washington.

11 Is there a dollar amount of client funds that I must have to be required to open a separate interest bearing account for the client? No. The requirement to maintain funds in an interest-bearing account for the client's benefit is based on the net interest earned (after deduction of bank charges and account maintenance costs) rather than the account balance. Since interest earnings are a function of the current interest rates and the length of time on deposit, there is no set amount that requires a separate account. You may want to prepare a matrix to show the interest earned by different amounts for varying periods of time. An example of this would be: These computations may be used as benchmarks for when a separate client account should be considered based on your financial institution's service charges and your firm's cost in setting up the account. What should I do if I cannot obtain my client's taxpayer identification number in order to set up a separate trust account for the client's benefit? Your client's funds should remain in the IOLTA trust account until you have the correct taxpayer identification number for the separate interest bearing account. You should document your efforts to obtain the identification number by keeping a record of telephone calls, copies of letters, etc. You should not, however, use your own or your firm's taxpayer identification number on the separate client account pending the receipt of the client's identification number. What is the required waiting period between deposit and disbursement? The time period depends on what was deposited and what requirement your financial institution has regarding collected funds. Funds may be deposited in many different forms: cash, checks, drafts, wire transfers, etc. Each financial institution has its own schedule, based on regulatory requirements and internal banking procedures, for recognizing collected funds. Discuss this with the financial institution handling your IOLTA trust account. They should be able to provide you with a schedule for the routine items you deposit and give you a method for checking on the collection of other deposit items. What should I do if I receive an overdraft notice on my client trust account from my bank? You should immediately contact your bank and take whatever steps are necessary to correct the deficiency in your client trust account. If necessary, you should deposit your own funds to make up any shortfall until the cause of the overdraft is determined. ELC 15.4 requires you to notify the WSBA Office of Disciplinary Counsel with a complete explanation of the overdraft and the steps you have taken to correct it.

12 What should I do when a client wants to pay by credit card? You can accept credit-card payments. You must decide to what type of credit-card payments you will accept. There are two kinds: advance fee payments and earned fees. You can accept payments for both advance fee deposits and earned fees or you can decide to accept one type of payment. If you decide to accept credit-card payments for both earned fees and advance fees, you must have two accounts. Trust account advances cannot be deposited into the same account as earned fees and then transferred to the trust account. What should I do about credit-card fees? Credit card companies charge a fee for credit-card payments. The fees for trust account payments should be charged to the general business account. However, if the fees are charged to the trust account you should deposit your own funds in the trust account to cover these fees. Reference RPC 1.14 Preserving Identity of Funds and Property of a Client Ethics Opinion 174 Trust Account Funds Held for One Client May not be Used for Advancing Costs on Behalf of Another Client Ethics Opinion 177 Guaranteeing Trust Account Disbursals Ethics Opinion 186 This opinion has been withdrawn. Ethics Opinion 187 Deposit of Escrow Funds by a Lawyer Acting As Agent Ethics Option 193 Use of non-iolta Disbursing Accounts

Managing Client. Trust Accounts WSBA. Rules, Regulations, and Common Sense. jshington State Bar Association"^ ' J?jfj" ~ J? jr ^ T J* J?

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