LER No. 21 - Rhode Award, Ethics Orgs Accountability, More 'Hallucitations,' Fallout from University Presidents at Congress, Mental Health, "Lowest Fees" Ad Sanctioned, Jobs, Events + More (12.18.23)
The Legal Ethics Roundup - your Monday morning tour of all things related to lawyer and judicial ethics.
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We’ve got lots of ground to cover from the latest legal ethics news over the past couple of weeks. (Last week’s edition replaced the regular roundup with a gift guide including a list of the best legal ethics books in 2023 — head over to Roundup No. 20 if you missed it.)
Before we dive in, I want to share some special news. The Association of American Law Schools announced last week that I’m the recipient of the Deborah L. Rhode Award, a joint recognition by the AALS Sections on Leadership, Pro Bono & Service Opportunities, Professional Responsibility, and Women in Legal Education. It is awarded annually “to the law professor or lawyer who exemplifies the groundbreaking work, imagination, and inspired action of Deborah Rhode.” She died in January 2021 after an illustrious career in law. She was the Ernest W. McFarland Professor of Law and director of the Center on the Legal Profession at Stanford Law School, the second woman to join the Stanford faculty. You can read more about the award here. Penelope Andrews (New York Law School) is a co-recipient. The award will be presented on January 4 at the AALS annual meeting in Washington, DC.
It’s a bittersweet moment for me. Deborah was a dear friend and mentor who left us much too soon. I’m honored others recognize my work as deserving of this award, but I sure wish she was here to celebrate it over a beer with lots of ice, her signature happy hour beverage.
I had the good fortune to spend my sabbatical in 2015 as a scholar-in-residence at Stanford with Deborah. We spent a lot of time walking her dog Stanton and talking about many of the legal ethics ideas that now I share with you in these weekly roundups. I think she’d have loved the idea of this newsletter, though I’m sure she’d have told me I should incorporate more humor, especially New Yorker cartoons. You’ll find a nod to another of her favorites in Wisdom of the Week, below.
You might recall from my Legal Ethics Eras Tour that I wrote about Deborah in a recent Fordham Law Review article, Mentored: On Leaders, Legacies, and Legal Ethics. Her passing marked the end of an era, and perhaps this award is the start of a new one for me. My forthcoming book Law Democratized: A Blueprint for Solving the Justice Crisis is dedicated to her memory.
But now, on to the roundup…
Highlights from the Last Two Weeks - Top Ten Headlines
#1 Ethics and State Supreme Courts. From the Center for Public Integrity: “Since 2015, a North Carolina Supreme Court justice has heard at least six cases involving the massive utility Duke Energy, a company in which he and his wife had a direct financial stake. In each of the cases, Paul Newby — chief justice since 2021 — sided with the utility. North Carolina’s Code of Judicial Conduct states that ‘a judge should disqualify himself/herself in a proceeding in which the judge’s impartiality may reasonably be questioned,’ including when they or a family member have ‘a financial interest in the subject matter in controversy or in a party to the proceeding.’ Newby did not respond to emails and calls to the judicial branch and his chambers requesting an interview. He also did not respond to a detailed list of questions from the Center for Public Integrity about his stock ownership and approach to judicial ethics.” Read more here.
#2 GPT ‘Hallucitations’ Strike Again? From CNN: “A federal judge has ordered Michael Cohen’s former attorney to explain where he came up with the court cases cited in Cohen’s request for early termination of supervised release, saying as far as the judge can tell ‘none of these cases exist.’ Judge Jesse Furman instructed Cohen’s former attorney David Schwartz to provide by December 19 copies of the court decisions he cited and what role, if any, Cohen had in drafting or reviewing the motion before it was filed. The judge also told the attorney that if he is unable to provide the opinions that he should explain why he shouldn’t be sanctioned. ‘As far as the Court can tell, none of these cases exist,’ the judge wrote.” Read more here
#3 Federal Judiciary Sexual Misconduct Trial Begins. From Reuters: “The U.S. federal judiciary's handling of a former North Carolina public defender's sexual harassment complaint took center stage on Monday at the start of a trial centered on allegations that her supervisor subjected her to unwanted sexual advances. Caryn Strickland called no witnesses before quickly resting her case against the judiciary shortly after the judge presiding over the non-jury civil trial in Asheville, North Carolina, heard opening statements from both sides. Her co-counsel and husband, Cooper Strickland, told U.S. District Judge William Young, the Boston-based judge assigned to hear the case due to conflicts in North Carolina, that documents already in evidence were enough to prove their case.” Read more here.
#4 The Judicial Conference’s (Lack of) Self-Governance. From ProPublica: “For decades, judges have relied on a select group to make sure the judiciary adheres to the highest ethical standards: themselves. The Judicial Conference, a secretive, century-old council of federal judges led by the chief justice of the Supreme Court, oversees the ethics and financial disclosures for more than 1,700 federal judges, including the nine justices of the high court. ... The judiciary's leaders argue that the conference has been an effective watchdog over America's third branch of government. … In reality, the Judicial Conference has instead often protected, not policed, the judiciary, according to interviews and previously undisclosed internal documents.” Read more here.
#5 University Presidents’ Congressional Testimony Fallout - a President/Lawyer Resigns, the Law Firm Who Prepped them Gets Blamed, and a Law Firm Boycotts. To understand what happened when the presidents of Harvard, MIT, and Penn testified before Congress about campus speech and antisemitism, start first with David Lat’s excellent coverage at Original Jurisdiction: “On Saturday, after Tuesday’s infamous congressional hearing about antisemitism on American university campuses—so disastrous it got turned into a Saturday Night Live cold open—Liz Magill announced her resignation as president of the University of Pennsylvania. … Magill will remain in office until an interim president is selected. She will also remain on the faculty of Penn Law, where she is a tenured professor of law. Yes, that’s right—Magill is a lawyer, with impressive credentials.” Read more from Lat here. Then read about WilmerHale in this NYT DealBook column, the law firm who prepared all three, some critiqued as overly-so with technically accurate responses that failed to adequately convey university values. At least one law firm announced a boycott of on-campus recruiting of Harvard law students due to Claudine Gay’s testimony. Read the letter from founder and CEO of Edelson PC here. Also, over at PrawfsBlawg, Howard Wasserman (FIU) reflects on whether gender played a role in the dynamic between the three female presidents and pressure from “wealthy male alumni and commentators.”
#6 Discipline for “Lowest Fees in the State” Ad. From Law360: “A New Jersey lawyer has been reprimanded by the state's highest court for touting on his website that his firm offered ‘the lowest fees in the state,’ as well as for related misconduct, court records show. In an order filed Friday, the New Jersey Supreme Court accepted the recommendation of its Disciplinary Review Board to reprimand Alan N. Walkow, who was reportedly based in Oakhurst when he operated the website in 2019. … The board noted that Walkow ‘could not have known the rates of all lawyers in the state,’ adding that the state's professional rules of conduct prohibit a lawyer from comparing their services to that of other lawyers in advertising unless the claim can be substantiated.” Read more here.
#7 The Miller Becker Center for Professional Responsibility at Akron Law Has a New Director. From the University of Akron News: “The University of Akron School of Law has named Heather Zirke director of the Joseph G. Miller and William C. Becker Center (MBC) for Professional Responsibility and assistant professor of law. Founded in 1993, the MBC is a nationally recognized academic center dedicated to enhancing public trust and confidence in the legal profession and the judicial system. Zirke had served as interim director since the May 2023 retirement of long-time MBC director and Emeritus Professor of Law John P. (Jack) Sahl. She has also been a senior lecturer at the School of Law.” Read more here.
#8 When it is Time to Take the CA Bar Exam - Pro Hac Vice Admission Denied. From Reuters: “For the second time in the last 12 months, the prominent and prolific antitrust plaintiffs' lawyer Steve Berman of Hagens Berman Sobol Shapiro has been denied temporary admission to practice before a California judge. U.S. District Judge Jeffrey White of San Jose refused to grant pro hac vice admission to Berman in a prospective antitrust class action accusing PayPal of raising prices for consumers by prohibiting merchants that accept PayPal from steering consumers to potentially more cost-effective payment options. White's ruling comes almost exactly a year after U.S. District Judge Jon Tigar of Oakland denied Berman’s application for temporary admission in a prospective product liability class action against skateboard company Future Motion. Both White and Tigar said Berman was not entitled to pro hac vice admission – the procedural vehicle for lawyers who want to litigate a case in a jurisdiction in which they are not licensed to practice – because he is more than a one-time or occasional litigant in California.” Read more here.
#9 British Judges “Given the OK” to Use ChatGPT and other AI Tools. From Gizmodo: “Robots may help determine your legal fate if you end up in a British court. The UK Judicial Office issued guidance Tuesday permitting judges to use ChatGPT and other AI tools to write legal rulings and perform several other tasks. ‘The use of Artificial Intelligence (AI) throughout society continues to increase, and so does its relevance to the court and tribunal system,’ the Judicial Office, which oversees judges, magistrates, and members of tribunal panels in England and Wales, said in a statement. ‘The guidance is the first step in a proposed suite of future work to support the judiciary in their interactions with AI.’” Read more here.
#10 The Apologies, Finally. Thanks to an open records request from the Atlanta Journal-Constitution, last week the actual apology notes from two of the lawyers indicted in Georgia with the former president — Kenneth Chesebro and Sidney Powell — were finally made public. (Recall from Roundup No. 13 that they issued these in October.) Read for yourself below.
Last Week in Ethics History
December 14, 1887. The Alabama State Bar Association adopted the first state-wide Code of Ethics. For more on that history, see Gilded Age Legal Ethics: Essays on Thomas Goode Jones' 1887 Code and the Regulation of the Profession by Carol Andrews, David Durham, and Paul Pruitt. This served as the foundation of the Canons of Ethics adopted by the American Bar in 1908. Susan Carle’s Lawyers' Duty to Do Justice: A New Look at the History of the 1908 Canons offers a detailed account.
Recommended Reading — Recent Scholarship
This week’s recommendations include two pieces advocating different reforms for the United States Supreme Court.
“The Need for an Asian American Supreme Court Justice,” Harvard Law Review Forum, November 2023 by Vinay Harpalani (New Mexico). Here’s an overview:
In her insightful Comment on Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (hereinafter SFFA cases), Dean Angela Onwuachi-Willig critiques Chief Justice Roberts’s majority opinion for its “simplistic understanding of race and racism.” She interrogates the “doxa” — the “unexamined cultural beliefs” that structure the majority’s narrative on racial experiences. Onwuachi-Willig elucidates how Chief Justice Roberts accepts whiteness as a tacit norm and ignores the marginalization of people of color. She contrasts this with the “fuller” history of American racism brought forth by Justices Sotomayor and Jackson in their dissents. And she deftly adds to their counternarrative with her own multifaceted analysis, incorporating narrative theory, history, and social science. Nevertheless, one important aspect of this “fuller” history was missing throughout: the precarious positioning of Asian Americans. … What struck me as I read the opinions, and as I reflected on Onwuachi-Willig’s analysis, is the need for an Asian American Supreme Court Justice.
Download here.
“Congressional Control Over the Supreme Court,” Congressional Research Service, December 6, 2023 by Joanna Lampe. Here’s an overview:
This CRS Report provides legal analysis of the extent of, and limits on, Congress’s authority to regulate or reform the Supreme Court outside the constitutional processes of judicial confirmation and impeachment. Many prominent Court reform proposals from recent years fall into two main categories: (1) those that would change the size of the Supreme Court and (2) those that would impose term or age limits for Supreme Court Justices. As discussed below, Congress has broad authority to set or change the size of the Supreme Court through ordinary legislation, but implementation of term or age limits would likely require a constitutional amendment.
Download here.
Accountability in our Democracy
This part of the roundup focuses on the legal profession’s accountability in our democracy. We first looked at the ways lawyers can be held accountable through the discipline system and malpractice claims, and then examined the First Amendment and lies told by lawyers. Next we focused on non-governmental organizations with a mission to reform lawyer and judicial ethics and then confirmed that yes, Congress does have the authority to hold the Supreme Court accountable for ethics issues. Other accountability issues have included reforms to the character and fitness process in lawyer licensing, and questions about where the line should be drawn when lawyers “manufacture” lawsuits and whether cameras in the courtroom further accountability in our democracy. Most recently, we debated the merits of unauthorized practice of law rules, took a deeper-dive into malpractice claims, and engaged in a thought experiment inspired by Julie Suk’s (Fordham) new article The Shadow Court. In the last post, we looked at a lawyer’s duty to innovate.
Starting in January, the Accountability in our Democracy section will feature nonprofit organizations working to improve lawyer and judicial ethics. I submitted questions to founders and executive directors of several organizations, and will be sharing what I learned. This initial post gets you acquainted with their work and goals. In the coming weeks, I’ll include details about successes and challenges, along with concrete steps each organization recommends to address reforms in legal ethics. Some of these entities have been around for at least a decade, but others were launched in the past couple of years. Here are some of the questions I hope to answer as we explore their work. Why were they started? What gaps in legal ethics reform do they aim to fill? How are they funded? Who guides their missions? Do we need more efforts like these devoted to accountability of lawyers and judges in our democracy? For now, here’s a brief introduction. (And if you think I’m missing an organization from my list that should be added, please let me know!)
Executive Director: Gabe Roth
Website: https://fixthecourt.com
What is your organization’s mission? Why was it founded?
Fix the Court is a 501(c)(3) organization founded in 2014 that advocates for nonpartisan “fixes” that would improve transparency and accountability in the federal courts — primarily in the U.S. Supreme Court. These include livestreaming SCOTUS and lower-court proceedings, ending justices' life tenure in favor of 18-year term limits, requiring a formal SCOTUS code of conduct, publicizing the justices' out-of-Court events and improving disclosure and recusal rules across the judiciary. It was founded because the Supreme Court in my adult lifetime has become the most powerful, least accountable institution in the country, and with the amount of power it’s arrogated to itself, there need to be strong ethical guardrails that ensure the justices are acting in a disinterested, upstanding manner. That theory also applies to judges in the lower federal courts, whose power has increased of late and who, like SCOTUS, are bound by weaker ethics and disclosure rules as compared to the political branches.
Executive Director: Theo Liebman
Website: https://freedmaninstitute.hofstra.edu
What is your organization’s mission? Why was it founded?
The Freedman Institute for the Study of Legal Ethics sponsors speakers, conferences, and symposiums on important ethical issues in the law; inspires a new generation of law students through the Freedman Social Justice Fellowship Program; and serves as a center for educational ethics programming and research for students and faculty. The Institute is named after Monroe H. Freedman, Hofstra Law’s second dean from 1973-1977 and a professor until the time of his death in 2015. Professor Freedman left an indelible mark, helping to define Hofstra Law and establish our reputation as a place where social justice and ethical lawyering form our backbone. His extraordinary accomplishments in bringing legal ethics to the forefront and creating a field of study where none previously existed are unparalleled and respected by all in the legal community. In the classroom and beyond, Professor Freedman was what is known today as a “disruptor.” He helped us to question the status quo and made us think deeply about the complexity of legal representation, particularly for those marginalized by society. Monroe Freedman schooled generations of law students and implored colleagues to “make a difference.” The Freedman Institute seeks to enhance his legacy.
Executive Director: Lauren Stiller Rikleen
Website: https://ldad.org
What is your organization’s mission? Why was it founded?
The mission of Lawyers Defending American Democracy (LDAD) is to galvanize lawyers to defend the rule of law in the face of an unprecedented attack on American democracy. Our work is neither political nor partisan. LDAD was founded because of then President Trump’s attacks on core principles and norms of America’s constitutional democracy and the rule of law, including the credibility of the mainstream media, the integrity of the courts and law enforcement, and the need for public officials to speak truthfully to the public.
President and Founder: Aliza Shatzman
Website: https://www.legalaccountabilityproject.org
What is your organization’s mission? Why was it founded?
The Legal Accountability Project (LAP) is a nonprofit aimed at increasing the likelihood that judicial law clerks have positive clerkship experiences, while extending support and resources to those who do not. Through thought leadership, advocacy, and innovative legal technology, LAP works to increase transparency, diversity, and accountability in judicial clerkships, the judiciary, and ultimately all the realms in which legal leaders operate. Aliza Shatzman founded LAP in June 2022 following her own experience with gender discrimination, harassment, and retaliation during and after her clerkship, which she first shared publicly in written testimony before a House Judiciary subcommittee last March, in order to ensure that future generations of law students could access transparent information about judicial clerkships. LAP is changing the culture around issues that have historically remained shrouded in secrecy, due to a culture of silence and fear surrounding the judiciary, one of deifying judges – even those known to mistreat their clerks. Unfortunately, law students overwhelmingly lack access to transparent information about judges as managers and clerkship experiences generally, causing them to accept clerkships without true “informed consent” about the particularly consequential first legal job they are taking on and the work environment they are entering. Diverse students, including historically marginalized groups like female, non-white, LGBTQ+, first-generation, and disabled students, disproportionately lack the formal networks and informal information channels that help some of their peers obtain clerkships. Law schools have historically failed to collect and disseminate this information equitably. Even at well-resourced schools, no advisor has information about all judges or clerkship experiences. To correct this imbalance, one important element of LAP’s work is a Centralized Clerkships Database that democratizes information about judges, ensuring that clerkship applicants have as much information about as many judges as possible before making the important career decision about clerking. LAP’s Database is populated with post-clerkship survey responses by former law clerks from across the country. The Database vastly increases the breadth and candor of information available to students considering clerkships and to their clerkship advisors. This resource corrects informational asymmetries between law schools and even among students at the same law school. The Database will increase in depth and breadth over time. [Are you a former clerk? Please take a moment to complete the anonymous survey to help expand the Database, link here.]
Executive Director: Tom Gordon
Website: https://www.responsivelaw.org
What is your organization’s mission? Why was it founded?
Responsive Law was founded in 2010. Its mission is to make the civil justice system more accessible, affordable, and accountable to its users. We’re the only national organization whose primary constituency is consumers of legal services.
Managing Director: Michael Teter
Website: https://the65project.com
What is your organization’s mission? Why was it founded?
In the immediate aftermath of the 2020 election, lawyers filed 65 lawsuits to overturn the legitimate election results. Finding the assertions baseless and riddled with false statements, judges uniformly dismissed the lawsuits. But success in the courtroom was not the true objective. Instead, the lawyers bringing these claims knew they were a key component of a larger effort to discredit the 2020 presidential election – and all future elections in which their preferred candidate lost. For that reason, losing the lawsuits did not create any deterrent effect to protect against such future efforts. Indeed, it’s clear that using the courts in this way has now become a political tool. The 65 Project seeks to protect democracy from the threat posed through abuse of the legal system by holding accountable the lawyers who brought (and continue to bring) meritless lawsuits seeking to overturn legitimate election results. [Full disclosure: I currently serve on the advisory board along with Christine Durham, Roberta Cooper Ramo, Paul Rosenzweig, and Stuart Gerson.]
Executive Director: Lucy Ricca
Website: https://clp.law.stanford.edu
What is your organization’s mission? Why was it founded?
The Deborah L. Rhode Center on the Legal Profession was founded in 2008 by the late Stanford Law School Professor Deborah L. Rhode. Through a multidisciplinary approach to teaching, research, and policy, the Rhode Center works to make civil justice more equitable, accessible, and transparent and to promote the legal profession’s commitment to the public interest. The Center is currently led by Co-Directors Professor Nora Freeman Engstrom and Professor David Freeman Engstrom, who are dedicated to carrying on Deborah’s enormous legacy.
Lawyer of the Week
For sharing his very personal story about mental health and lawyering, Bruce Simpson is our lawyer of the week. The December issue of the ABA Journal features his first-person account “Making it Back: Bruce Simpson Tried to Take his Own Life, then He Started Healing.” Here’s an excerpt: “I have practiced law in Kentucky for 40 years, and I write this today to warn you about reaching the point of no return should you ever determine, as I did in January 2023, that death is a better option than life. Here is why I am sharing this: People are more vulnerable to being mentally shattered, given certain life crises, than they sometimes can appreciate. I do not want anyone I can influence—lawyer or not—to descend into an unstoppable spiral to the point of no return.” He also shared his experience with the Kentucky Bar Association Bench and Bar Magazine, which you can read here. As Reuters reported earlier this year, “lawyers are twice as likely as other U.S. adults to contemplate suicide, according to [a] study, which was based on a survey of nearly 2,000 lawyers in California and the District of Columbia.” We need more stories like Bruce’s to be shared widely.
Judge of the Week
Our judge of the week is U.S. District Judge Beryl Howell. She’s got a lot going on right now. From The Hill: “Rep. Elise Stefanik (R-N.Y.) on Friday requested an ethics investigation into a federal judge who has ruled in cases linked to Jan. 6 rioters and former President Trump — and who is currently overseeing Trump ally Rudy Giuliani’s defamation trial. Stefanik claimed that U.S. District Judge Beryl Howell engaged in ‘judicial misconduct’ during a speech she gave last month after accepting an award at a Women’s White Collar Defense Association gala. Stefanik called it a ‘highly inappropriate political speech.’ In the speech, Howell discussed the impact of ‘big lies’ in connection with the Jan. 6, 2021, Capitol attack and quoted historian Heather Cox Richardson’s book ‘Democracy Awakening’ that ‘big lies are springboards for authoritarians.’ The judge did not mention Trump by name. ‘We are having a very surprising and downright troubling moment in this country when the very importance of facts is dismissed or ignored,’ Howell said in the speech.” Read the rest of The Hill’s coverage here and watch Judge Howell’s speech here. A federal jury ruled Friday that Giuliani must pay $148 million to two Georgia election workers in the defamation case, after Judge Howell found him liable. As for the ethics complaint? I predict it is dismissed.
Get Hired
Did you miss the 60+ job postings from previous weeks? Find them all here.
Conflicts Attorney, Williams & Connolly — Washington DC. Responsibilities include analyzing potential conflicts issues, including for new case matters and hiring of new legal professionals; initiating discussions with attorneys, the Professional Responsibility and Risk Management Counsel and General Counsel when necessary; providing recommendations for resolution and ensure clear documentation of resolutions; drafting and reviewing conflict waiver requests; and more. More details here.
Executive Director, Houston Bar Association — Houston. The executive director is the chief staff executive and is responsible for strategic, operational, and staff leadership and management of the Houston Bar Association and the Houston Bar Foundation including development and implementation of strategic direction, oversight of day-to-day programs and operations, and cultivating strong relationships with the Bar’s ancillary organizations and strategic, corporate and community partners. More details here.
Fellow, Justice Technology Association. The JTA’s mission is to democratize the consumer legal experience through the use of technology for the public good.
Do you want to make a real impact on the access to justice gap through tech? They are looking for a fellow. Contact executive director Maya Markovich maya.markovich@gmail.com.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
December 19 — Funeral Service for Supreme Court Justice Sandra Day O’Connor, Washington National Cathedral. The service will be broadcast live here starting at 11AM. I’ll be attending in-person and plan to share a Bonus Content post.
January 5 — Association of American Law Schools Annual Meeting, Professional Responsibility Section Program on “The Duties of Lawyers to Constitutional Governance.” Attending the AALS meeting in Washington DC? If so join us from 10-11:40AM. I’m one of the panel speakers along with Lonnie Brown (Tennessee), Stephen Gillers (NYU), Rebecca Roiphe (NYLS), and Margaret Tarkington (IU).
January 9 — Jeffrey Clark Disbarment Hearing Begins. This trial will be live-streamed on YouTube, and is scheduled for numerous dates during January. I’ll provide more details after the new year. (H/T Luke Johnson)
January 30 — LawDroid Inaugural AI Conference. This free event will help you “master the latest AI advancements that can revolutionize your legal practice.” Topics will include “the intricacies of AI policy to ensure your practice remains compliant and informed.” (H/T Tom Martin) Learn more and register here.
March 15 — Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis? Cardozo Law School is hosting this in-person event, which starts at 9AM and is open to the public. A disclaimer—I’m one of the invited speakers. The lineup is terrific and includes: Melissa Murray (NYU), Richard Painter (Minnesota), James Sample (Hofstra), Sung Hui Kim (UCLA), Rebecca Roiphe (New York Law), W. Bradley Wendel (Cornell), Ian Ayres (Yale), Deborah Pearlstein (Princeton), and Daniel Richman (Columbia). More information here.
Wisdom for the Week
There are places I'll remember
All my life, though some have changed.
Some forever, not for better;
Some have gone and some remain.All these places had their moments
With lovers and friends I still can recall.
Some are dead and some are living,
In my life I've loved them all.
In My Life, The Beatles, 1965
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I wish you a wonderful week! See you next Monday.