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Legal Counseling

Basedon the Lectures of Atty. Angeles


III-Manresa 2014-15

I.
PRACTICE OF LAW ISSUE: WON Atty. Monsod was engaged in the
practice of law.
A. Definition
HELD:
An act of performing any activity pertaining to a Practicing law is not limited to the conduct of
bona fide member of the bar carried out on a cases in court. A person, for a valuable
habitual or continuous process, translated into consideration, engaged in the practice of
action by means of giving legal advice, drafting advising persons, firms, associations or
of documents or appearance in court or any corporations as to their rights under the law or
other administrative or quasi-judicial body, one who appears in a representative capacity as
involving the use of faculty or intelligence of one an advocate in proceedings is considered
skilled in law who is entitled to a legal fee . practicing law.
(from the author of the book).
II.
Atty. Angeles: WHAT IS LEGAL COUNSELING AND
WHAT IT IS NOT
:: carried out in a habitual or continuous process
- Pag once mo lang ginawa, nagbigay ng advice, A. Practice of Law is NOT a:
hindi sya maconsider as a practice of law. There
must be a pattern of doing things so that we 1. Business. The practice of law is not about
can conclude that an individual is engaged in the profit.
practice of law.
Members of the bar often forget that the
:: involving the use of faculty or intelligence - practice of law is not a money-making
applying all that you have learned and all venture and law advocacy is not a capital
aspects of your training and education, e.g. that necessarily yields profit. The gaining of
statutes, provisions, jurisprudence, statutory livelihood is not the primordial but a
construction, you put all of them into use for secondary consideration ( Burbe vs. Atty.
one particular work Magulta).
Duty to public service and to the
:: legal fees - not limited to attorney's fees, it administration of justice should be the
includes salaries, compensation or remuneration primary consideration of lawyers.
Lawyer must subordinate personal interest.
Why is it important to determine that one It is a noble calling in which emolument is
is in the practice of law? just a by-product and the highest eminence
may be attained without making much
Practically because we need to know whether money.
you are entitled to a legal fee or whether you
are legitimately engaged in the practice of law Atty. Angeles: The practice of law is more than
because if you are not, you can be guilty of just a business, it is nobler than that. As a
violation of our penal laws, i.e. usurpation of lawyer you must be instrumental to the
official functions. dispensation of justice. Remember, however,
that when you set up a law office, you must be
Cayetano vs. Monsod able to maintain that office. You must strike a
balance between earning to survive the practice
Atty. Monsod was a nominee for the position of and keeping your practice an honest
COMELEC Chair. Atty. Cayetano questioned the undertaking, not making profit the primary
said nomination of Atty. Monsod because one of objectice.
the requirements for the position is that the
person must have practiced law for the last 10 2. Legal Right.
years. Atty. Monsod is not a lawyer in a law
firm. A candidate does not have the right to enjoy

1|Bing Datu

Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

the practice of legal profession simply by obligation - we're talking of a legal


passing the bar. It is a PRIVILEGE that CAN obligation and not of a unilateral, voluntary
BE REVOKED subject to the mandate of due act of a client. What can be imposed is only
process of law (Case of Ui). the legal obligation, A unilateral act of
kindness of another party cannot be
B Instances NOT Considered as Practice of imposed.
Law:
before a judicial or quasi-judicial body - It
1. Gratuitous furnishing of legal aid to the poor must be before a branch of government
who are in pursuit of any civil remedy, as a vested with jurisdiction to hear and
matter of charity does not constitute practice of adjudicate non-litiguous cases with power to
law. enforce its judgments.
2. Search of records of realty to ascertain what
they may disclose without giving any opinion or Is legal counseling a science or an art?
advise as to the legal effects of what may be Legal counseling is both a science and an art.
found.
3. When you are merely doing clerical work. It is a science because it pertains to the
Work involving only clerical labor or filling in application of laws, jurisprudence that must
finished documents without giving legal advice. be applied in a given set of facts. You
cannot just pull something out of thin air
C. What is Legal Counseling? and create a story or law.
It is an art because it involves conducting a
Definition: It is the art of giving advice or human activity. There are some lawyers
information concerning the solution of a legal who are very good with showing empathy
problem arising from given state of facts and the with the clients' cause while there are
adoption of appropriate use of remedies under lawyers that are very distant. I wonder how
the law for the satisfaction and enforcement of a some of you would turn out to be.
legal obligation before a judicial or quasi-judicial
body. III.
LEGAL ETHICS
giving advice or information - It is either
preventive or curative. Curative means Definition: It is a branch of moral science which
trying to remedy the problem without treats of the duties which an attorney owes to
necessarily bringing the subject matter his client, to the bar, to the court and to the
before the court for adjudication. public.

solution of a legal problem - Does not A. Duties of a Lawyer


include social problems (Atty. Angeles 1. to the client - Ensure that the client is advised
talking about the movie of John Lloyd and of the progress of the case. More importantly,
Bea where everyone is crying). If it is not a you must be honest, even in your expections of
legal problem, there is no legal counseling. the case --- Does it have a chance? Do not give
HOWEVER, in a case of common-law your client false hope.
partners, who acquired a condominium, the
issue of who owns the condo and other 2. to the bar or fellow lawyers - a lawyer is
properties after the break-up becomes a never a loner, he is part of a community of
legal problem as it now involves property lawyers. Hence, if the Bar Association calls on
rights. you for help, if time permits and if your
resources would allow, you extend your services
given state of facts - Minimum requirement to the Bar.
is to deal with facts. Avoid hypothetical or 3. to the court
theoretical situations. 4. to the public

satisfaction and enforcement of a legal Code of Professional Ethics

2|Bing Datu

Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

relationship imposes upon the lawyers certain


Canon 7: A lawyer shall at all times uphold the restrictions circumscribed by the ethics of the
integrity and dignity of the legal profession and legal profession to keep inviolate confidential
support the activities of the Integrated Bar. information acquired or revealed during the
consultations.
Rule 7.03: A Lawyer shall not engage in
conduct that adversely reflects on his fitness to The fact that one is (lawyers in a partnership or
practice law, nor shall he, whether in public or a law firm), at the end of the day, not inclined
private life, behave in a scandalous manner to to handle the client's case is hardly of
the discredit of the legal profession. consequence. Of little moment is the fact that
no formal professional engagement follows the
As officers of the court, lawyers must not only in consultation nor would it make any difference
fact be of good moral character but must also that no contract whatsoever was executed by
be seen to be of good moral character and the parties to memorialize their relationship.
leading lives in accordance with the highest
moral standards of the community. More A lawyer-client relationship is established at the
specifically, a member of the Bar and officer of very first moment complainant asked
the court is not only required to refrain from respondent formal advice regarding his
adulterous relationship or the keeping of business.
mistresses but must also so behave himself as
to avoid scandalizing the public by creating the To constitute professional employment, it is not
belief that he is flouting those standards. Tolosa essential that the client employed the attorney
v Cargo, Adm. Case No. 2385, March 8, 1989. professionally.

Atty. A: Integrity and dignity of the legal C. Client's Funds and Property
profession is not only limited to work but
involves your personal life. As lawyers we should Rule 16.01: Lawyers shall hold in trust all
be mindful of certain things, we cannot totally moneys of their clients and properties that may
separate our lives from the public. The legal not be in their possession. Office accounting
profession sets a high standard because we must separate client funds properly from own
want to be removed from the multitude because funds.
we perceive our profession as a noble calling
and only people who have strong convictions Lawyers who convert the funds entrusted to
can really attain that status. them are in gross violation of professional ethics
and guilty of betrayal of public confidence. It
B. When does a lawyer-client relationship may be true that a lawyer has a lien over the
begin? clients' funds but you cannot unilaterally apply
the money given for a different purpose to pay
The moment complainant approached the then for your own services.
receptive respondent to seek legal advice, a
veritable lawyer-client relationship evolved D. Conflict of Interest
between the two. Such relationship imposes
upon the lawyer certain restrictions A lawyer conferring with a prospective client
circumscribed by the ethics of profession. shall ascertain, as soon as practicable, whether
Among the burdens of the relationship is that or not the matter would involve a conflict with
which enjoins the lawyer, respondent in this another client or his personal interest.
instance, to keep inviolable confidential
information acquired or revealed during legal V.
consultations (Hadjula vs. Madianda). MAJOR AREAS OF
SPECIALIZATION
The moment the cmplainant approached the
respondent to seek legal advice, the lawyer-
A. Transactional/Commercial
client relationship has already established. Such

3|Bing Datu

Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

Requires the development of knowledge on Office must be clean and organized. It must
setting-up or initiating a business convey an image of professionalism
transaction from the beginning of the Staff must be polite and language used
process to closure of the transaction. must be appropriate
E.g. Client wants to set-up a family Staff must be accommodating
corporation, the lawyer needs to know the Appropriate furniture
sharing of stocks amongst the family Charting an ideal law office (see: Barte, pg.
members if so desired by the client, the 17-18)
paperwork and government agencies
involved, as well as the tax aspect of C. Filing System
business, etc. Lawyer will design the filing system for his
easy access
This includes: Major Categories of Files
o Land transaction e.g. buy & sell, 1. Client Files must contain
mortgages Folders for client must
o Estates, succession contain: contact details;
o Franchising general correspondence;
o Communications billing sent out to client
o Agrarian If litigation is filed, there
must be a folder for
B. Litigation pleadings.
Lawyer who takes up court litigation as a 2. Accounting Files must contain
specialization must know the rules of Office accounting for
procedure and evidence by heart. clients/bookkeeping;
Problem of backlog and court cases also salaries of staff; accounts
spring from the fact that many practitioners receivables and payables;
are not prepared to be litigators. overhead expenses and
Litigation also encompasses modes of government fees.
alternative dispute resolution. NOTE: It must be separate
from accounts folder
VI.
GENERAL PRACTICE 3. Administrative Files must contain
Personnel must sign
confidentiality agreement
A mix of both litigation and transactional
Membership in professional
areas of law practice in small cities, towns
organizations
and rural areas
Publications (articles written
and published)
VII. Marketing (sponsorships)
OPENING A LAW OFFICE Information Technology

A. Location D. Calendar System


Preferable to be in a busy district A calendar system must be set up in the
Near government offices like the Hall of office where scheduled appearances in court
Justice, ROD, BIR, City Hall or meetings should be monitored by all
Accessible to public transportation It could be done electronically
Sufficient client parking Deadline for pleadings must also be
monitored.
B. One-man Law Office The following weeks schedule should be
Draw a floor plan finalized, if possible, Friday of the previous
Physical set-up week. A copy of the schedule should be
Shelf with law books and other references given to the lawyers.

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Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

E. Software for Law Practitioners of compensation is quantum


Supreme Court Decisions meruit.
Word Processing How do you compute for the
Billing Accounting quantum meruit? Sesbereno vs. CA,
Office Networking 245 SCRA 30
Avail of software application for efficiency
C. Guidelines in Ascertaining the Real Worth of a
VIII. Lawyers Services
PROPOSED ORGANIZATIONAL
1. Rule 20.01, Canon 20, Code of
STRUCTURE OF A START-UP
Professional Responsibility - A lawyer
LAW FIRM/OFFICE shall be guided by the following factors in
determining his fees:
IX. a) The time spent and the extent of the
BILLING THE CLIENT services rendered or required;
b) The novelty and difficulty of the
Client must feel that he is not overcharged. questions involved;
Determine how valuable the matter is for c) The importance of the subject matter;
your client. d) The skill demanded;
Client must feel he gets the value for his e) The probability of losing other
money. employment as a result of acceptance of the
proffered case;
A. Two Concepts of Attorneys Fees f) The customary charges for similar
1. Ordinary Concept services and the schedule of fees of the IBP
Reasonable compensation paid to a chapter to which he belongs;
lawyer by his client for legal services g) The amount involved in the controversy
rendered to the latter. and the benefits resulting to the client form
2. Extraordinary Concept the service;
Attorneys fee is an indemnity for h) The contingency or certainty of
damages ordered by the court to be compensation;
paid by the losing party in litigation. i) The character of the employment,
Basis: 2208 of the Civil Code whether occasional or established; and
Payable to prevailing party, not to j) The professional standing of the lawyer.
the lawyer, unless the client has
agreed that award shall pertain to 2. Contract of Employment
the lawyer as additional Highly recommended although not
compensation or part thereof. required
Case of Traders Royal Bank
B. Two Kinds of Retainers Fees Maybe express or implied, verbal or
1. Operational Retainer (Retaining Fee) written.
Fee paid to a lawyer to secure his
futures services as general counsel 3. Contingent Fee Contract
for any ordinary legal problem that As long as the contract is not tainted
may arise in the ordinary business with fraud, undue influence, malice or
of the client. suppression of facts on the part of the
lawyer, terms of the contract shall be
2. Special Retainers Fee implemented against the portion of the
Fee for a specific case handled for clients property subject of the contract,
special services rendered by lawyers not only if the suit or litigation ends
to clients. favorably to the client.
Where there is no mention of a
special retainers fee, the measure 4. Other Factors

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Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

Business-like approach in fixing and 3. Price


payment of fees This is the entity point; allow your
Other unexpected incidents clients to see if they can continue a
Transportation and representation relationship with your office.
expenses 4. Promotion
Appearance fees Within the bounds allowed by rules
Expenses to be incurred in perfecting an (advertising your name on magazines,
appeal referrals, etc.)

X. D. Things to remember:
BUSINESS Never take more clients than you can handle
with loving care.
DEVELOPMENT/MARKETING
Keep your friends close and your enemies
FOR LAW PRACTITIONERS closer, you will never know where that
referral would come from.
Getting your name out there. Keep in mind to keep the clients perspective
Big law offices have rainmakers, the rest foremost is both delivering and marketing
of lawyers do not develop their books of your legal services.
business.
Aim for sustainability of practice
XI.
o To achieve success in their legal
careers KEEPING CLIENTS
o To promote growth in their law
offices A. Protect and nurture the relationship
Client is boss
A. Strategies Marketing is a Contact Sport Define the relationship from the start;
Pursue profile and confidence building things you will do; make sure is satisfied
activities; e.g. speaking engagements, with the agreement; misunderstandings
publishing articles must be clarified right away.
Establish targets identify types of work
and clients B. Personal demeanor and behavior of lawyers
Identify 3-4 business activities in a year towards the client
o Something lawyers like and does Doing good job is not enough.
naturally Friendliness; promptness (no
o Get active in trade organizations procrastination); courtesy; respect for
Support execution clients; business-like attitude; keeping
Check results vis--vis your financial plan so clients informed or updated.
that success can be measured Availability at all times e.g. telephone
calls, e-mails, text messages
B. Important Considerations
Know what your clients value C. You must keep your clients informed on what
Know your goals short term and long term
Know your resources Update of case or matter subject of
retainorship
C. Following 4Ps of Marketing Prompt response to inquiries (re: billing;
1. Product status of case)
Identify the need then provide a service Opening alternative or options to client
that addresses that need uniquely. for speedy disposition of cases
Dont be a me too law firm; create a Bringing client abreast with
quality product or service. developments in area of concern
2. Place Transparency in billing
A question of access, physical access;
also consider the internet.

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Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

D. Train personnel or support staff for o Anticipate reactions of courts and


professionalism; must understand pressure of other quasi-administrative agencies
legal work and confidential nature or work. or bodies
o Probative value of evidence
XII.
WORK TASKS 1. Alternative Courses of Action
Indicate his preferences as to which cause
A. WORK TASK - The Interview of action should be followed by client;
Initial client interview Convince client as to why he should adopt a
o to obtain information about the course of action;
legal problem of the client Avoid showing any preference; merely pose
o information gathered to be used to available alternatives in neutral terms.
evaluate the courses of action open
to the client and to decide whether 2. Sidelights of advisory
to agree or not. Mastery of legal doctrines and
First interview is akin to a first date; getting substantive/procedural laws.
to know each other
Lawyers agenda from the lawyers point 3. Non-legal Advice
of view For example, widows, spouses with marital
o Determine if lawyer of firm would be difficulties or small business owners with
interested to take matter financial difficulties.
o Determine if client is someone
lawyer or firm would like to take on 4. Role Conflict in Giving Advice
o Communication to client suitability Lawyers may run into role conflict when
of lawyer, qualifications and giving advice brought about by
availability of lawyer circumstances in the relationship with client.
o Generally outlining the scope of the For example, when client does not want to
propose representation be criticized or when a client may just want
o Communicating to client anticipated reassurance from lawyer of his ideas, etc.
steps ahead, including matters 5. Lawyers ultimate word
which cannot be known at this time Clients role must be defined clearly
Checklist when interviewing prospective Lawyer to stand by client but only to such
client extent as will not compromise his ethics.
o Why client chose you?
o Has client seen other lawyers? Why C. WORK TASK- NEGOTIATION &
didnt the other lawyer take the CONCILIATION
case? Essential factors in negotiation
o Is client a shopper? 1. Proposal to the other side
o Is client under influence of relative, 2. Counter proposal
co-worker, etc.? 3. Reconsideration
o How much is the matter affecting 4. Compromise
client? 5. Advice to clients
o Listen to what your client says. 6. Clients instruction to counsel

B. WORK TASK Advice Parties to negotiation normally, it is one-


Giving recommendations as to courses of on-one
action to follow including reasons and data
supporting these courses of action. Mechanics of Negotiation
Based on lawyers conception and learning Lawyer may come in anytime in the
of relevant substantive law and doctrine process if some clients want their
applicable on particular facts and subject lawyers to be part of the team from the
involved. beginning. Some clients just sent their
Considerations: lawyers to negotiate.

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Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

Lawyer must be armed with a SPA when Difference between negotiation and
negotiating; relationship is similar to litigation:
agent and principal in a contract of o In litigation, a third-party decides
agency the issues; in negotiation, the party
seeks to resolve the issues by
NOTE: Compromise agreement without a mutual agreement among
SPA from the client renders the judgment themselves.
based on the contract NULL and VOID.
G. WORK TASK Financing
General power does not include Special Lawyer invited by a client to be involved in
Power business venture as principal himself
Special authorities needed when the law Most business relationship between client
is not included in the general power and lawyer reap enormous benefits
granted to a lawyer under his contract sometimes as contingent fees when the
of employment with client. transaction pushes through.
However, acts entered into by lawyer Arrangement acceptable so long as there is
without the SPA are not, ipso facto, no violation of lawyers oath nor anything
NULL and VOID; it can be ratified. unethical with huge fees; no shady deeds

Effective Negotiation Techniques H. WORK TASK Property Management


1. Speeding up litigation process Property management for clients includes:
2. Concealment of facts 1. Leasing
3. Shifting negotiation techniques 2. Eviction
3. Contract for repairs
D. WORK TASK DRAFTING 4. Rent collection
It is the writing and revision of written 5. Arranging for maintenance services
instruments; includes complete preparation and insurance
of instrument, its review and revision by 6. Payments of taxes and other
others. expenses
Lawyer may be tasked to draft original 7. Acting as executors and trustees
document tailored to a single transaction, or - Compliance Officer
standard forms applicable to several - position is needed in companies
transactions. competing in heavily regulated
industries
Examples cited by Barte - he is expected to the regulations that
1. Contracts and Deeds must be complied with
2. Sales
3. Lease Compliance Officer - functions as a liaison
4. Mortgage between a regulatory body and the
5. Wills company itself. He must conduct a routine
inspection of the company practices and
E. WORK TASK Clarity and Precision Writing determine WON they are in compliance with
Gifted document writer is not required the standards or requirement of the law,
o Document should have essential statutes or ordinances.
requisites and formalities required
by law. Acting as executor or trustee
o The simpler the language, the
better. Specialization
Keep sample documents on file 1. Tasks performed
2. Goods/services produced
F. WORK TASK Litigation 3. The person the lawyer works for
Not limited to court litigation 4. The place where the lawyer works

8|Bing Datu

Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

SKILLS THAT A LAWYER MUST HAVE! procedural la, decisions of the SC


applicable to the given set of facts.
1. Collaboration Skills Start formulating theory of the case.
A lawyer must know how to collaborate in a Final product should be cohesive, logical
multi-party environment view of the merits of the case that is
A lawyer must know how to trust the consistent with common everyday
wisdom of the group. experience, which builds on your
One must not be an isolationist. strengths and finds ways to compensate
The whole surpasses the sum of parts for your weakness.

2. Emotional Intelligence 3. Elements of a good case theory


Clients need empathy, perspective, and a) Factual Narrative - what happened
personal connections before, during, and after must be rich
Colleagues need our engagement, respect but not too creative. It must be
and understanding consistent with your clients story, can
be supported by admissible evidence
3. Financial Literacy b) Identify key facts not all facts are of
A lawyer must have a working knowledge key importance, theory must identify
and an understanding, not necessarily an key facts that will lead to your
expert, of the financial world. conclusion.
c) Motives must cite plausible motives to
4. Project Management actors and witnesses; must be
This involves time-management supported by admissible evidence
Lawyer must know how to estimate time d) Law
and budget costs and not to rely heavily on e) Emotions
'it-depends' cost. In other words, a lawyer f) Opponents case remember the other
must know how to quantify their time and side also has a lawyer; in trial you have
other costs so as not to give their clients a to play defense as well as offense;
vague estimate or projection of the costs. attack on the other sides strengths
g) Short summary
5. Technological Affinity
Lawyers must effectively use e-mail, XIV.
internet, mobile, RSS, etc. CASE PRESENTATION
6. Time Management How do you prepare for a case?

XIII. 1. Interview with the Client.


ADVOCACY: CASE
MANAGEMENT AND a. Set the terms straight!
PREPARATION Lawyer-client relationship must be
established
A. Theory of the Case Appearance fees must be agreed upon and
terms of payment
1. Definition: Line of reasoning of either party Client cannot dismiss his lawyer whimsically,
to a suit which brings together certain facts especially if the case is already in court. A
of the case in a logical sequence so as to withdrawal of council must first be filed and
produce a result that will assure that the approved.
party gets a favorable.
b. Determine the facts.
2. Analysis and Development of Theory Interviewing a client is a continuous
Proceed to research pertinent statutes, process. All the facts are not expected to be
legal provision of substantive and out in the first interview.

9|Bing Datu

Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15

Client is supposed to be telling you the concise manner, using appropriate


naked truth. Hence, you have to make your language.
client at ease and without malice to enable b) Brief should lessen the burden of the
to get the client's utmost interest. appellate court in the examination and
not make the task of review difficult.
c) Every argument must be supported by
c. Interview must be in a language known or citation of authorities indicating page or
familiar to the client. page of the record where such
d. Reduce to writing the interview and narration authorities are cited and transcript of
of the witnesses. stenographic notes, where testimonial
e. Interview all witnesses and classify each or documentary evidence can be found.
according to importance and probative value.
f. Ocular Inspection

2. Preparing an appellate brief


Guidelines in the preparation of an
appellants and appellees brief found in
Section 13 and 14, Rule 44, Rules of Court.
Content Structure as required by law for
appellants brief:
1. Subject Index
2. Assignment Of Errors
3. Statement Of Cause
4. Statement Of Facts
5. Statement Of Issues Of Facts And
Law
6. Arguments
7. Relief
8. Where case not brought up by
record on appeal, the appellants
brief shall contain, as an appendix,
a copy of the judgment.

3. Preparing an appellees brief


Content structure for an appellees brief:
1. Subject Index
2. Statement of Facts where appellee
shall the facts in the other partys
brief, or under the heading Counter
Statement of Facts, party shall
point out such inaccuracies as he
believes exist with reference to the
pages of the record in support
thereof (no repetition of matters)
3. Argument where appellee will set
forth each assignment of error with
reference to the record.

4. Things to remember when preparing an


appellate brief:
a) Court does not know your case. Hence,
case must be presented as simply as
possible of the issues involved, in a

10 | B i n g D a t u

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