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NO EMPLOYEE IS INDISPENSABLE

One of the character traits of lawyers is that because we often see the negative side of life as we tend to observe matters in a pessimistic manner equivalent to viewing a glass half empty versus a glass half full. On the other hand, clients often view matters in an overly optimistic manner, which is often not based in reality.

For example, in our employment law practice, we often encounter clients who have been terminated from their jobs, often causing them surprise and shock. This surprise and shock is caused because they felt they were indispensable to their employer.

If I have learned one thing during the course of my legal career in the labor, employment, and civil rights fields, it is that no one is indispensable to their employer. Pennsylvania is an employee-at-will state, and although employees sometimes have recourse to appeal, contest, or complain about their termination, this is often a lengthy and costly process, if done correctly. Attorneys are often able to expand severance packages which employees have been offered, but a severance package often does not replace one’s job, or the loss of self-esteem which an employee often experiences as a result of being selected for a layoff or a termination.

Therefore, I offer some suggestions from a legal perspective about what one should or should not be doing as an employee.

  • Although many employers advertise that they have an “open door policy” and state that they welcome ideas and suggestions, and they want to hear about problems you are having with other staff or supervisors, I recommend that employees should be very careful about stepping through that door, and if an employee decides to step through that door, be very careful about what one says. Many employers do not want to learn about their employee’s opinions, and especially do not want to hear complaints about other staff. Among the clients I encounter, the employee who files the complaint against the “evil” supervisor, is usually the person who is terminated.
  • Do not assume that because you are a long-term employee (and I mean even upwards of 25 years) , that your efforts have earned the company a lot of money, or that your efforts have saved the company a lot of money, that your employer will not lay you off, eliminate your position, or dismiss you. Unfortunately, the days of guaranteed long-term employment ended many years ago, and do not appear to be returning.
  • What is the difference between insubordination and disagreeing with your supervisor or manager? The difference is solely in the opinion of the employer. Employers do not appreciate being told that you do not agree with their opinions, do not agree with other staff they work with or supervise, and do not appreciate hearing that you are not going to do things the way they have asked you to do them because you do not agree that is the way they should be done. Let me repeat: no one is indispensable, and you can find yourself terminated because you have voiced your disagreement.
  • Although most employers have policies regarding sexual harassment and hostile work environment, and urge reports of same, they are rarely pleased to hear these complaints. This is usually because they feel they must spend time and resources investigating the complaint, and they risk making a decision which will come back to bite them in the long-run. Remember that the person complaining about this behavior, and the person who is complained about, have equal rights, so if the person complained about is disciplined or terminated, that person may allege that said action was undertaken wrongfully by the employer, and the employer will have to defend themselves, costing them more time and money.
  • Do not assume that human resources professionals are on your side. From my many years of experience, the vast majority of the professionals I have dealt with are concerned about their own jobs first, and your job second. They try to balance making it appear as if they are “investigating” your issues, while at the same time trying not to offend the employer by spending time and resources on your matter.
  • I wish I had a dollar for every time an employee client tells me that their employer can’t do something “because it is illegal”. First, although there may be laws against engaging in certain types of activities, generally the enforcement of those laws is up to the individual employee’s attorney, as government agencies don’t always have the time, money, staff, knowledge or inclination to handle matters, and if they do handle matters, it may take years to do so. Second, people often misinterpret the law. Each case is based on an independent fact pattern and is subject to many vagaries, so what someone reads on the Internet often does not apply to the facts of their case, or may depend on the laws of different states than the relevant one.

In conclusion, and continuing on with viewing employment matters as a glass half empty, my advice to all employees is to tread very carefully in their positions, because they are not indispensable to their employers: remember, length of service makes no difference if the employer decides to eliminate your job for some reason, do not rely on human resources representatives to be of valuable assistance, and consult a lawyer when you feel there is something inappropriate or peculiar happening in your workplace. It is preferable to consult a lawyer if you have doubts about what is happening in your workplace, and your position, than wait until you have been disciplined or terminated.

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BENJAMIN FRANKLIN’S SEVEN GREAT VIRTUES

Recently I walked by a parking garage in Philadelphia and noticed something that made me smile on a gloomy winter day. A sign announced that the floors of the garage were named after Benjamin Franklin’s 7 personal virtues that he created to define his life, and no doubt hoped would be followed by his fellow American citizens – an aversion to tyranny, compromise, freedom of the press, humility, humor, idealism in foreign policy, and tolerance.  Even more telling, I noticed the sign shortly after our country had concluded the most vicious Presidential election in American history (2016), when the nerves of all citizens, both winners and losers in the election, were still raw due to the brutal process of this particular election.

Although I probably had read about the virtues during my school years, they seemed new, fresh, and particularly relevant to our current lives, so I decided to read about Franklin’s thought process in selecting them. Franklin was one of the, if the not the most, interesting and remarkable of America’s founding fathers. He was a man of many talents, skills, interests and knowledge. I will discuss how the legal field impacts on those virtues.

An Aversion to Tyranny– In 1755 when Franklin opposed taxes imposed from England, and most of his fellow colonists did not oppose them, he wrote: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The law presents the only legitimate avenue in which ordinary citizens, within the means at their disposal, can attempt to create change. Of course, citizens can lobby their elected representatives or influence the press to publicize their viewpoints, but this can be a cumbersome and lengthy process.  Although the legal process has its own vagaries and expenses, it can potentially allow even a single person to create significant changes based on a court’s decision at some point in the legal process.

Compromise– The legal profession is based on compromise.  That is not to say that lawyers do not aggressively pursue their clients’ interest, but in the long run, the legal process would collapse if compromise was not engaged in since over 90% of all matters are usually resolved during the process before or during litigation. Not only is compromise a practical approach, but it encompasses engaging in some of the other virtues mentioned here.

Freedom of the Press– The flow of information and ideas through a free press has long been a hallmark of the legal process. These days the process is more transparent than ever before. Most courts engage in the electronic process, which allows anyone to view the progress of a case, review the documents filed with the court and by the court in that case, and to review the court’s opinion if it is published. Although certain politicians and political movements have an agenda of limiting free press these days, on the other hand, everyone seems to have a viewpoint these days, and feels free to promote it easily through social or print media. It does not appear likely that ideas will stop flowing and opinions, although chilled perhaps, will stop being promoted in the future.

Humility– I don’t think this word is in most lawyers’ vocabularies. It is the nature of the legal profession to favorably compare ourselves with other lawyers.  We are encouraged to market and advertise ourselves as being the best of the best. We are encouraged to profile our superlawyer and pre-eminent status through all forms of media. Unfortunately, some of the least skilled lawyers are the ones who resort to the most puffery. Also, unfortunately, people tend to believe such puffery until proven to them otherwise. I don’t know if a lack of humility is necessarily bad in the field of law, so we will live with it.

Humor– Jokes about lawyers appear endless. Although law is a serious profession, the situations that ordinary people often find themselves in can be hilarious.  Often the decisions handed down in the legal process can be funny. The actions of lawyers, judges, jurors, and lawyers can be humorous. Unfortunately, the day to day lives of lawyers are usually based on serious situations involving individuals clients, companies, and the government. I believe lawyers try to do the best they can with the situations handed to them, which often leaves them as the brunt of jokes. We can’t all be stand- up comedians, and if you need a lawyer you wouldn’t consult a clown, so it is what it is.

Idealism in Foreign Policy–  I recently read an article about the Kansas 40 member  Senate not having a single lawyer serving in it.  Although many people may applaud this absence of a legal mind, this absence caused a problem because of a statutory requirement that required a lawyer. It surprised me that there were no elected lawyers in that Senate, because politics and law certainly have gone hand in hand throughout American history. Not to say that other professionals do not have ideals and ethics, but I think lawyers have the unique training and perspective of trying to further the common good through their profession, represent their interests intelligently and act ethically while doing so.

Tolerance– America has struggled through and continues to work on the concept of tolerance. Many of the civil rights laws were not enacted until nearly 200 years after America’s creation, and the establishment and consideration and determination of those laws is an ongoing process. Tolerance is under great attack these days, and although we live in a diverse country, that diversity is not equally spread or appreciated throughout our country. It is up to lawyers to make certain that tolerance is adhered to and honored, even in the worst of times.

Tolerance encompasses the other 6 virtues which were endorsed by Franklin, and tolerance is what makes America great and continues to make America great in these turbulent times and in this turbulent world. Let it reign forever, and let lawyers be its crowning glory!

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PUT A LITTLE LOVE IN YOUR HEART

As Jackie DeShannon sings in her song, “Put a Little Love in Your Heart:”

Think of your fellow man,
lend him a helping hand
put a little love in your heart…

We are living in cruel times. Human kindness, decency, and regard for others seem to be on the wane. Obviously, during the history of mankind, boorish behavior has existed and may even have been the norm, but one would hope that at this point in the human journey we would have learned to “play nice.”

Recent incidents involving children make one wonder whether families are taking the time to instruct children on the basic niceties of human behavior. I grew up in Minnesota, not the fictional Lake Wobegon of Garrison Keillor’s imagination, “where all the women are strong, all the men are good-looking, and all the children are above average,” but Minnesota “nice” just the same. Not only did parents instruct and discipline their children, but neighbors knew each other, and they all assumed responsibility for making certain that all children behaved properly. In fact, the entire community, really everyone we encountered- school teachers and staff, shopkeepers, extracurricular organizations’ staff, the police- kept an eye on children. It was not unusual for parents to receive a call from any of the above to ask if they knew that their child was out late or engaging in inappropriate behavior. I can tell you that when my parents received a call like that, it resulted in some type of punishment for my brothers and me.

Whoo boy! Have things ever changed, and for the worse. I will give you three examples:

First, a recent news story featured a mother and father who appeared at their son’s elementary school, sadly and coincidentally, on a day designated as “Family Fun Day,” to take him out of school early. The mother refused to abide by school protocol, which required that she go to the school’s office to present identification before she left with her son. The protocol was instituted to prevent unauthorized people from leaving with children. Instead of following protocol, the mother insisted on removing her son from the playground. When the principal and vice principal tried to stop her, the mother assaulted them, and the father later joined in. The mother has been charged with aggravated assault, criminal conspiracy, criminal trespass, simple assault, reckless endangerment of another person, disorderly conduct, and harassment. At the time the news story was published, the father, who ran away, was still being sought by authorities.

Second, a student and her family sued the Philadelphia School District for failing to stop the student from being bullied over her gender-nonconforming presentation (the judge described it as not conforming to “societal expectations for girls in terms of appearance and dress…”). The judge awarded them $500,000, under the Pennsylvania Human Relations Act’s prohibition of sex discrimination, in a unique application of that Act to student-on-student bullying. The girl attended three respective public schools, but the bullying persisted. She developed serious psychological problems, which led to the financial award.

Third, something happened to me recently. A boy of about 12 was walking down the street screaming at the top of his lungs, while I was trying to make a telephone call. I suggested to him that said behavior was not appropriate, as it disturbed other pedestrians. His mother started screaming at me, telling me I had no right to tell her son what to do. She became more enraged by the moment, made some personally insulting remarks to me, and then said she was going to spit on me, which she did, after her group circled me, yelling. Although several people viewed this interaction, when I asked if they had seen what happened, they all shifted their eyes to the ground. The mother’s actions do not portend well for her son. In too many situations these days, people are afraid to step forward and do the right thing, for fear of being criticized or even harmed. When I relayed this incident to others it was suggested that I had no business correcting the boy’s boorish behavior, and it is best to mind my own business. But, that is not how I was raised, and I fear for our society if the rules have changed so that anyone can do whatever they want, anytime they want, wherever they want as others cower in fear.

Let’s all put a little love in our hearts and think of our fellow man, and the world may be a better place for you and me.

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NO GOOD DEED GOES UNPUNISHED

I started writing this blog 3 months ago, but its topic, which involves all of the drama and passion of a morality play, has been the subject of ongoing change as reported in the news, so I amended it before posting. The story involves a homeless drug-addicted man, Johnny Bobbitt, who allegedly used his last $20 to help a young lady, Kate McClure, when she allegedly ran out of gas near the spot where Bobbitt was panhandling. In turn, McClure and her boyfriend, Mark D’Amico, started a GoFundMe.com page for the purpose of helping Bobbitt with his drug addiction problems and finding him a home. The public responded graciously and $400,000 was raised to assist Bobbitt. As this story involves the human attributes of kindness, sympathy, greed and avarice, and highlights the heights and depths, follies and foibles of the human experience, the news media has given it much coverage, and the three parties have appeared as guests on various TV programs.

The purported original story was that although the relationship between the parties began amicably, as happens so often when money is involved, it soured fairly quickly. Bobbitt, who received temporary housing and drug rehabilitation, became homeless again, and continued to be addicted to drugs, and he accused McClure and D’Amico of stealing funds from him.

Problems arose when McClure and D’Amico apparently dealt cavalierly with the funds contributed for Bobbitt. The couple’s initial story was that because Bobbitt lacked the relevant identification documents required, a bank account could not be opened in his name, so they placed the funds in their account. The couple also stated that the funds were placed in trust accounts for Bobbitt, but apparently that never happened. The couple also purchased Bobbitt a new camper, but they purchased it in McClure’s name. The camper was placed on McClure family property. Although the couple did release some funds to Bobbitt, they allege that he used most of the money to buy drugs and refused to enter a drug rehabilitation facility. D’Amico also stated that he “borrowed” $500 of the donations to gamble, but stated that he returned the amount from his “winnings.” Bobbitt is alleging that the couple purchased an expensive car, took a number of vacations they most likely could not have afforded, and that D’Amico is a gambler. He believes they used the GoFundMe.com money to live their enhanced lifestyle.

This entire story fell apart as a court appointed lawyers to protect Bobbitt’s interests, and an investigation began. It appeared that all three of the players were in cahoots with each other from the beginning, spinning a false story, which disintegrated into three separate versions, placing blame on each other. When I originally wrote of this incident, I pointed out that the parties would have benefitted from legal advice and that McClure and D’Amico should have immediately relinquished control of the funds to be used by and for Bobbitt’s well-being. That advice still stands.

The repercussions from this situation constitute quite a fall from grace given McClure’s and D’Amico’s possible original intention to be good Samaritans.  Unfortunately, but not necessarily surprising, people who suddenly find themselves with access to a large amount of unexpected money give in to the vagaries of greed and avarice.

So what are the value lessons of this story? There are three:

  • In our social media culture, where everyone and everything is placed under a microscope, if funds are raised for a purpose, they should be used for that purpose.
  • In America, people have the freedom to live the life they want with limited oversight, and just because a drug addict does not change his stripes does not mean he is not entitled to funds raised on his behalf.
  • Possibly no good deed goes unpunished.

In this instance, perhaps there was not a good deed even done.

 

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WHAT IS THE TRUE VALUE OF A LAWYER?

It is my professional responsibility as a lawyer to keep current with legal developments and how they relate to politics, and local, state and national news. This is a time-consuming process. Lawyers have to constantly learn, study, and analyze; their education is never-ending. A recent article quoting Wayne Hassey, Esquire, the managing partner of Maguire Schneider Hassey in Ohio, drew my attention. He is a fan of technology in the law, and he notes that although lawyers formerly formed a closed society, and only they had access to locating, analyzing and interpreting the law, due to the Internet, soon law will be a completely open source, and the public can educate itself.

Mr. Hassey is of the opinion that as everyone can now self-educate themselves about the law, the true value of a lawyer is “trust, advocacy, judgment and duty”. Silly me… I thought those concepts already contributed to the true value of a lawyer. And, many days lawyers question if they have any value, but that is usually after watching lawyers slogging away at each other on political programs, and being pummeled by “news” commentators.

Of course, most lawyers already encounter clients or potential clients self-educating with “Internet law,” and lawyers are not happy with that practice. Just because one reads about the law does not mean that one automatically acquires the legal skills necessary to traverse the increasingly complex legal system, and does not mean that the things one reads about actually apply to one’s situation. In fact, many lawyers are of the opinion that the general public has been harmed by its vague knowledge of the law.  As a result, deadlines are not recognized and often missed, frivolous and superfluous motions are filed, and outrageous financial demands with no relationship to actual losses suffered are made. Therefore the old adage that a lawyer who represents him/herself has a fool for a client has now been expanded to the general public.

Although law is a historic profession, like much of society it is undergoing change, stress and turmoil, and the days when law was considered a stable and rigid profession are certainly gone. It appears that the legal field will experience turbulent times ahead. The large national and international law firms are continuing to invade each other and poach other lawyers, offer teams of lawyers some incentive to leave their current firms, or simply absorb or merge with other firms. Not only are lawyers leaving firms, but the managing partners of law firms are changing firms late in their careers, as are lawyers who have practiced with their original firms for a quarter of a century.

So I say to those Internet “lawyers” who have self-represented and been caught in the extremely complex wheels of the law, I trust that you have learned that the true value of a lawyer is having the advantage of relying on someone who guides you through the complexities of the ever-changing and highly complex laws which control your matter. So when lawyers themselves are experiencing turbulence in the legal field, relying on the Internet for information on how to practice law is not something a layperson should undertake.

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A LIFELINE FOR THE DISABLED

Although Anthony T. Hincks stated “the only disability that I have, is that I’m human”, that is not true for many people. Although I wish my readers long and healthy lives, many people find themselves at some point in their lives, through no fault of their own, partially or fully medically disabled. I beg you, as well as your family, friends, colleagues and clients, to seek the help of a lawyer when you are applying for long-term (and in some cases short-term) disability benefits, requesting leave under the Family Medical Leave Act, requesting accommodations pursuant to the Americans with Disabilities Act, or applying for Social Security disability benefits.

 

One should not assume that just because they have successfully completed the first level of any of the above application processes, that one is home free. The application process is just the tip of a much larger iceberg that lies below the surface, and, if not handled correctly, can have significant collateral consequences such as undermining a future benefits claim or resulting in the loss of one’s job.

 

The process involved in applying for disability benefits of any sort does not simply involve bringing in a letter from one’s doctor. While this may have sufficed in the “good old days,” the current process is fraught with deadlines, specific requirements, complicated forms, and other landmines that can blow up one’s disability claim. Additionally, if someone is applying for medical leave or disability, it means that they are not functioning at the top of their form and not feeling 100% well. They are often in pain, or suffering from the side effects of medication, which can include fatigue, memory loss, confusion, frustration, depression, and anxiety.  Many people become so upset trying to comply with the requirements of their workplace’s human resources staff, or the staff of a disability carrier, when applying for benefits, that they become frustrated and give-up, or make errors which could impact their ability to receive or continue to receive benefits in the future.

 

Additionally, there is frequently a lack of communication between the employee, employer, insurance carrier, or the third-party intermediary which handles disability, or leave claims for the employer.   The employee may assume that the employer is aware of their medical condition because they have provided their medical information to a third-party carrier or intermediary. Or, often the employer has assigned the medical leave and benefits process to one or more third parties for the purpose of removing themselves from the process in order to preserve the privacy of their employees, or to prevent supervisory staff from becoming biased against a disabled employee. This enforced lack of communication can lead to situations where the employee and the employer are like ships passing in the night. Both parties may mean well and believe they are properly handling the situation, yet they never connect. This can lead to an employee being terminated in spite of a disability because the employer does not have the full understanding of their situation, and an employee feeling they were terminated inappropriately or in violation of a law, despite their employer being fully aware of their situation, or so they thought.

 

Further, doctors do not control employers. This is news to many employees who believe that simply because their employers ask for their doctor’s input, that the employer is legally obligated to listen to the doctor’s recommendations. That is not correct. The law requires a certain level of cooperation from employers, but employers are generally free to control their workforce.  Many employees have lost their jobs because their doctors have asked that they be permitted to be out on leave beyond the time permitted by the law, or have recommended that the employee be permitted to return to work part-time, when that is not an option in their workplace or job, or have stated that the employee should be placed in a different job, when that is not probable, possible, or required of an employer. Employers are generally not required to adhere to the above suggestions. Each workplace has different rules, restrictions, policies and procedures, or even collective-bargaining agreement language to consider. These must be considered alongside local, state, and federal laws.

 

By way of example, we had an unfortunate client who was permitted to take FMLA leave for a mental health condition. During that leave she required back surgery, which kept her out of work for three additional months. The employer regularly asked her for medical updates, and at some point inquired of her doctor when she could return to work. The doctor gave an estimate of a return to work date, but after that date passed, and hearing no further from the doctor or our client, her employer terminated her because of her lack of communication. The client alleged that she did not have to provide a follow-up to her employer because her doctor had not yet cleared her to return to work. The employee thereafter had an option of applying for medical disability retirement, as she was a federal employee, but she did not apply in a timely fashion as she felt she should be permitted to return to her original position. By the time her appeal process ended, she had missed her filing deadline for disability, and the employer chose not to return her to her employment.

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The LAW WILL HUNT YOU DOWN

Each year my Firm receives hundreds of telephone calls from people and company owners who are seeking advice or representation for their legal issues, and our lawyers spend considerable time discussing their issues and legal options with them. Yet many of those telephone calls end with the callers simply fading away, or deciding to postpone action for another day. My questions to them are “where do you think you can go where the law will not find you?” or “how is something going to happen if you don’t take some action?”

Perhaps it is human nature to procrastinate, but it is mindboggling to me that people do not undertake the legal action they should be taking in a timely fashion to protect themselves and their families from future problems.  Some examples follow of my experiences:

Real Estate: 

Husband and wife divorced 10 years ago. Wife could not afford a lawyer so there was not a property settlement agreement negotiated or determined by a judge. The property was purchased while the parties were married, but the deed is only in Husband’s name. Wife wants to know what she can do about placing the property in joint names with Husband, or forcing a sale of the property so she can claim a share. When I advised Wife what she can do and what she should do, her response was “okay,” and that was it!

 Estate:

A caller’s father, who was a widower, died 10 years ago without a will. The father’s children, including the caller, agreed that one of them could administer the father’s estate, which included real estate. The agreed-upon administrator permitted her son to live in the father’s house rent-free for 10 years, and the other siblings have never received any distribution from the estate. The caller doesn’t think anyone is or has paid real estate taxes for some time because she thinks the house is up for sheriff’s sale. When I told her what she had to do she said she would talk to her siblings, I didn’t hear from her again, and that was it!

 Collections:

A caller called to say that her bank account had been frozen. There are only a couple ways in which this can happen. In the private sector in order to execute on a bank account one must have a valid judgment. A valid judgment occurs when one is sued in a court and either did not defend, defended but lost the case and did not appeal, or was not properly served and did not know about the lawsuit. The response to my questions from callers with similar problems is invariably one of the following:

  • I could not afford an attorney and did not defend the lawsuit.
  • I don’t remember ever receiving notice of the lawsuit.
  • I didn’t know they can take funds from my bank account or take my personal possessions.

When a judgment has been taken we would have to investigate if the judgment was appropriately taken or if service of the underlying lawsuit was proper. If we notice a problem we try to open the judgment, which must be agreed to by a judge. Thereafter the case may have to be retried or settled by negotiation. A judgment does not disappear until many years have passed via state statute, or it is marked satisfied by the party bringing the lawsuit.

Sometimes people have paid the judgment but did not request or know that the judgment must be marked satisfied, and it may remain on their record or credit score, or impact their ability to sell real estate in the future.

 Landlord/Tenant:

A caller asked what he needs to do to become a legal landlord in Philadelphia. I discussed licensing and lease language with him, and the pros and cons of operating as a corporation, as well as the tax ramifications. He did not even want to spend a small amount to learn the legalities of his future business. If this man does something inappropriately, and runs afoul of the city or taxing authorities, which will likely happen as he is not interested in learning the correct way to operate, it will cost him thousands of dollars to remedy the situation.

 Traffic Tickets:

Traffic tickets for moving violations or parking tickets do not disappear. Many years down the road, even after someone has moved to another state, they often find that their license has been suspended because of tickets they have ignored, or in some cases, tickets which have been accrued by others to whom they have loaned their cars or to whom they did not legally transfer title. Many states have reciprocal agreements with each other and will honor action taken to suspend a driver’s license due to tickets in a different state.

The law is a living breathing system. It will not go away just because one closes their eyes or tries to ignore it. Ignoring that one has been sued – or failing to take action in a timely manner within the statutory deadlines required under the law – will only come back to haunt one at a later date.

 

 

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