January 31, 2007 no. 449 - Vol. 5

"Relying on the government to protect your privacy is like asking a peeping tom to install your window blinds."

John Perry Barlow

[Editor's note: a peeping tom refers to a person who engages in voyeurism]

"What is malpractice?" is the subject of today's Grammatigalhas

  • Top News

EU to debate data transfers to US

A debate in the European Parliament is to look at how much data on air passengers and bank transactions is fed into a US anti-terror profiling system. Washington says access to international bank transactions and passenger records is essential for its war on terror. The EU has raised concerns with Washington that the US system could be gaining access to passenger data in ways that violate a EU-US agreement. Now MEPs want to know whether the European Commission knows of any other requests to companies such as telecoms providers or insurers to make their data available to the Americans. One MEP said it was not a question of being anti-American - American privacy laws were in fact tougher than those in the EU. The problem is that those laws did not apply in Europe, and that there was no democratic debate on the American measures in either national parliaments or at the European level.

UN warning over counterfeit goods

Counterfeiting is costing the global economy more than $100bn every year and putting human health and safety at risk. The World Intellectual Property Organization (Wipo) told a conference that China was the worst offender in the trade of counterfeit goods. Wipo says every product on the market is a target for counterfeiters and that 10% of the world's medicines are fakes. The conference in Geneva is looking at new ways to fight counterfeiting.

US 'to become top wine consumer'

The US will supplant France as the world's biggest wine consumer by 2010 as the global wine market expands to 31.8 billion bottles, research says. A forecast of wine trends between now and 2010 reveals that the French are drinking less while the Russians and the Chinese are uncorking more bottles. China, the tenth biggest wine consumer, will be drinking 36% more by 2010. Consumers are turning to more expensive wines, with US growth in particular set to be driven by pricier vintages.

ICC set for first trial after charges confirmed against Congo militia leader

The International Criminal Court (ICC) confirmed war crimes charges Monday against Congolese militia leader Thomas Lubanga , making Lubanga the first ICC defendant to face trial. As founder of the militant Union of Patriotic Congolese, Lubanga is accused of enlisting child soldiers in the Democratic Republic of Congo's violence-plagued Ituri district . Following a pre-trial hearing in November, ICC judges deliberated over whether there was sufficient evidence to proceed against Lubanga. Lubanga has maintained his innocence, claiming that the prosecution has withheld evidence necessary to prepare a full defense. Chief Prosecutor Luis Moreno-Ocampo said that last year that he is also preparing to submit evidence to ICC judges in a separate case regarding crimes committed in Darfur. Charges in the Darfur case are expected by February.

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  • MiMIC Journal

Stock Frenzy In China's Stokes Official Concern

As China's stock market continues its record-breaking rally, regulators are increasingly expressing concern that the country's growing ranks of investors are doing everything from mortgaging their homes to borrowing against their credit cards to get in on the action. China's stock-market benchmark, the Shanghai Composite Index, rose 130% in 2006 and has continued to soar this year, placing Chinese stocks among the world's top performers. Yesterday, the index gained 2.2% to 2945.26. In a frenzy that recalls the late-1990s dot-com boom in the U.S., the rally has drawn in a new generation of investors. Online trading is spreading rapidly, and in recent weeks individuals have been opening stock-trading accounts at the rate of about 90,000 per day, 35 times the pace of a year earlier.

China's leader begins Africa tour

China's President Hu Jintao has arrived in Cameroon at the start of a 12-day tour of Africa, aimed at strengthening economic and political ties. Trade has expanded dramatically between Africa and China in recent years as China seeks resources to feed its economy and markets for its exports.

Hong Kong limits pregnant Chinese

New rules are about to come into effect in Hong Kong, designed to limit the number of pregnant women arriving from mainland China to give birth. Pregnant mainlanders must arrange a hospital booking in advance before being allowed entry into Hong Kong. Hong Kong says the influx of mainland women has strained health facilities. The women are attracted by the chance to gain Hong Kong residency rights for their children, including health care and education. A Hong Kong birth also allows women to circumvent China's one-child policy and can give them access to higher standards of medical care.

  • Grammatigalhas

Legal Meaning Is Not Everyday Meaning

Malpractice

Improper or immoral conduct of a professional in the performance of his duties, done either intentionally or through carelessness or ignorance; commonly applied to physicians, surgeons, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties where professional skills are obligatory.

Negligence

Lack of due care or failure to do what is reasonable and prudent under the circumstances. Omission of something that a reasonable person, guided by those considerations that ordinarily regulate the conduct of human beings, would do, or doing something that a prudent, reasonable person would not do.

The concept of negligence developed under English law. Although English common law had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act. Originally liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in performing that service. Gradually the law began to imply a promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modern concept of "duty." For example, innkeepers were said to have a duty to protect the safety and security of their guests.

Everyday “Legal” Jargon

Malpractice

Malpractice refers to negligence or misconduct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet a standard of care or standard of conduct that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of error.

After the 1970s the number of malpractice suits filed against professionals greatly increased. Most malpractice suits involved doctors, especially surgeons and other specialists who performed medical procedures with a high degree of risk to their patients. Large damage awards against doctors resulted in higher malpractice insurance costs. Similarly, the increase of malpractice awards against lawyers led to higher insurance premiums and caused some insurance companies to stop writing malpractice policies altogether.

The typical malpractice suit will allege the tort of negligence by the professional. Negligence is conduct that falls below the legally established standard for the protection of others against unreasonable risk of harm. Under negligence law a person must violate a reasonable standard of care. Typically this has meant the customary or usual practice of members of the profession. For example, if a surgeon leaves a sponge or surgical tool inside a patient, the surgeon's carelessness violates a basic standard of care. Likewise, if an attorney fails to file a lawsuit for a client within the time limits required by law, the attorney may be charged with negligence.

Legal Malpractice

The four general areas of legal malpractice are negligent errors, negligence in the professional relationship, fee disputes, and claims filed by an adversary or non-client against a lawyer. As in the medical field, lawyers must conform to standards of conduct recognized by the profession.

A lawyer has the duty, in all dealings and relations with a client, to act with honesty, good faith, fairness, integrity, and fidelity. A lawyer must possess the legal skill and knowledge that is ordinarily possessed by members of the profession.

Even after the lawyer and the client terminate their relationship, a lawyer is not permitted to acquire an interest that is adverse to a client, in the event that this might constitute a breach of the attorney-client privilege. A lawyer cannot use information that he obtained from a client as a result of their relationship. For example, it would constitute unethical behavior for an attorney to first advise a client to sell a piece of property so it would not be included in the client's property settlement upon divorce and then to purchase the property from the client for half its market value.

Any dealings that a lawyer has with a client will be carefully examined. Such dealings require fairness and honesty, and the lawyer must show that no undue influence was exercised and that the client received the same benefits and advantages as if she had been dealing with a stranger. If the client had independent legal advice about any transaction, that is usually sufficient to meet the lawyer's burden to prove fairness.

A lawyer also has the duty to provide a client with a full, detailed, and accurate account of all money and property handled for her. The client is entitled to receive anything that the lawyer has acquired in violation of his duties to the client.

If a lawyer fails to promptly pay all funds to his client, the lawyer may be required to pay interest. A lawyer is liable for fraud—except when the client caused the attorney to commit fraud—and is generally liable for any damages resulting to the client by his negligence. In addition, a lawyer is responsible for the acts of his associates, clerks, legal assistants, and partners and may be liable for their acts if they result in losses to the client.

Negligent errors are most commonly associated with legal malpractice. This category is based on the premise that an attorney has committed an error that would have been avoided by a competent attorney who exercises a reasonable standard of care. Lawyers who give improper advice, improperly prepare documents, fail to file documents, or make a faulty analysis in examining the title to real estate may be charged with malpractice by their clients. A legal malpractice action, however, is not likely to succeed if the lawyer committed an error because an issue of law was unsettled or debatable.

Many legal malpractice claims are filed because of negligence in the professional relationship. The improper and unprofessional handling of the attorney-client relationship leads to negligence claims that are not based on the actual services provided. Lawyers who fail to communicate with their clients about the difficulties and realities of the particular claim risk malpractice suits from dissatisfied clients who believe that their lawyer was responsible for losing the case.

Another area of legal malpractice involves fee disputes. When attorneys sue clients for attorneys' fees, many clients assert malpractice as a defense. As a defense, it can reduce or totally eliminate the lawyer's recovery of fees. The frequency of these claims is declining, in part perhaps because attorneys are reluctant to sue to recover their fees.

A final area of legal malpractice litigation concerns claims that do not involve a deficiency in the quality of the lawyer's legal services provided to the client, but an injury caused to a third party because of the lawyer's representation. This category includes tort claims filed against an attorney alleging malicious prosecution, abuse of process, defamation, infliction of emotional distress, and other theories based on the manner in which the attorney represented the client. These suits rarely are successful except for malicious prosecution. Third-party claims also arise from various statutes, such as securities regulations, and motions for sanctions.

In the US, it is professional misconduct for a lawyer to:

  • Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

  • Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

  • Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

  • Engage in conduct that is prejudicial to the administration of justice;

  • State or imply an ability to influence improperly a government agency or official;

  • Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Besides issuing these general statements, the model rules set down many specific requirements for attorney conduct in different situations. Because of an attorney's special relationship to the law, he or she is held to a special standard of conduct before the law.

As members of the bar and officers of the court, lawyers are beneficiaries of the privilege of the practice of law and also are subject to higher duties and responsibilities than are non-lawyers. A lawyer's fiduciary duties arise from his status as a member of the legal profession and are expressed, at least in part, by the applicable rules of professional conduct.

The word fiduciary in this quote comes from the Latin word fiducia, meaning "trust"; as a fiduciary, then, the attorney acts as the trusted representative of the client. Trust is thus a defining element of the legal profession, and without it, the practice of law could not exist. For that reason, the legal profession has created strict rules of conduct regarding the attorney's relationship with the client.

Typically, to prevail in a legal malpractice case, a plaintiff must prove all of the following:

  • The existence of an attorney-client relationship;

  • Negligence in the legal representation of the plaintiff;

  • That the negligence was a proximate cause of an injury;

  • The fact and extent of the injury alleged.

Note: malpractice laws vary by state.

As the elements outlined above suggest, the first thing a plaintiff must do in order to prove legal malpractice is to establish that an attorney-client relationship existed. Absent an attorney-client relationship, the lawyer doesn't have any duty to the client, and there is no basis for a malpractice action.

Next, a plaintiff must establish the "standard of care" which governed the legal representation, and show that the attorney violated that standard of care. Sometimes this is easy, and may not even require any expert testimony. For example, if a lawyer steals money that the lawyer holds in trust for a client, the fact that the attorney violated a duty to the client is a "no brainer". However, as legal representation is often complex, it is often necessary to use an expert witness to establish the governing standard of care, and to describe how the lawyer violated that standard of care.

Once those elements are satisfied, is is necessary to demonstrate that the plaintiff suffered an injury as a proximate result of the lawyer's negligence. That is, that the injury followed from the lawyer's misconduct. For example, where a lawyer fails to make an evidentiary objection which would have kept a murder weapon out of evidence, a criminal defendant may have a case for legal malpractice - but if the defendant confessed to the murder, left fingerprints all over the victim's house, and was caught while trying to use the victim's credit cards, the defendant won't be able to demonstrate that the lawyer's mistake affected the outcome of his case, and thus won't be able to show that the injury resulted from the negligence. Similarly, if the connection between the alleged act of negligence and the harm suffered is speculative or extremely attenuated, it may not support a malpractice claim - the injury suffered must ordinarily be a reasonably foreseeable consequence of the attorney's negligence.

Finally, the plaintiff must ordinarily establish that damages actually were suffered as a result of the legal malpractice, and the nature and amount of those damages. Even if all other elements of a malpractice case are established, if the plaintiff cannot show that any damages resulted from the legal malpractice the lawyer will typically be entitled to a dismissal of the case.

Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client. In other words, while a gross error in judgment may be actionable as legal malpractice, a mere error in judgment made in good faith is not. This rule protects the attorney who acts in good faith and keeps the client informed and involved in the case, but makes what turn out in hindsight to be strategic or tactical errors in handling a case.

In many legal malpractice actions, there may be discussion of whether the plaintiff could win the "case within a case". This discussion occurs in malpractice cases involving prior litigation, where a plaintiff claims to have either lost or to have recovered a smaller amount of damages than warranted by the facts and law, as a result of the original lawyer's malpractice.

In order for the plaintiff to establish that damages were suffered as a result of the alleged malpractice, depending upon state law, it is often necessary for the plaintiff to prove that, but for the malpractice, a favorable verdict would have been won or greater damages recovered. In essence, this is a retrial of the original litigation within the context of the malpractice action - a case within a case.

It is important to note that within the context of a legal malpractice action, a lawyer may utilize what were formerly privileged communications from the client in order to respond to allegations of negligence.

As If Your Life Depended On It… or How to get to Carnegie Hall? - Practice, practice

Torturous / Tortuous

A path with a confusing proliferation of turns is tortuous (from a French root meaning "twisted" But "torturous" (meaning painful or unpleasant, like torture) is very frequently confused with it. So often has "tortuous logic" (tangled, twisted logic) been misspelled as "torturous logic" that it has given rise to a now independent form with its own meaning, "tortured logic." Few people object to the latter; but if you want to describe your slow progress along a twisting path, the word you want is "tortuous."

Pull the wool over one's eyes

Deceive or delude one, especially by giving misleading or confusing information. Attempts have been made to interpret 'wool' as a wig, which if pulled forward over the wearer's eyes prevents them from seeing what is going on. There are two objections to this explanation: the first is that a wig is not made of wool; the other is that the earliest recorded uses of the expression (in the USA in the mid-19th century) have other verbs besides 'pull', including 'spread' - hardly appropriate to a solid object like a wig. A better explanation is that 'wool' has been jocular standard English for the hair of the head since the 17th century. Just as you can be hoodwinked if someone covers your eyes with your hood, the same effect can be achieved if someone covers them with your own hair.

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  • Historia Verdadera

Extradición

Autoridades judiciales de Argentina enviarán la próxima semana a España el pedido oficial de extradición de la ex presidente Isabel Perón, de no prosperar se agilizará un proceso penal en ese país. Perón esta acusada hechos de lesa humanidad ocurridas durante su gobierno en los años 70.

Capitales extranjeros

El gobierno de Kirchener impugnará la venta de Transener al fondo de Eton Park y apunta a incorporar capitales locales en la principal transportadora eléctrica. Una vez que se oficialice el rechazo de la transacción, la brasilera Petrobras negociará sus acciones con la estatal ENARSA y la privada Electroingeniería que pretenden igualar la oferta de casi 60 millones de la empresa norteamericana.

Fronteras

Los presidente Alan García y Michelle Bachelet tras una conversación telefónica dieron por superado el problema limítrofe que surgió luego que el Congreso aprobara el proyecto de Ley que fijaba una nueva demarcación territorial del Perú. Arica y Parinacota es la zona fronteriza entre ambos países.

SII

El caso de corrupción en el Servicio de Impuestos Internos (SII) continua levantando polvareda en Chile, la Fiscalía investiga la situación patrimonial de los funcionarios presuntamente involucrados en la defraudación fiscal.

Aviones

Con la ayuda de “gobiernos amigos” como Irán, el presidente Hugo Chávez analiza la posibilidad de construir aviones militares no tripulados y repotenciar sus viejos cazabombarderos F-5 de fabricación estadounidense. Venezuela fue afectada por el embargo a la venta de equipos militares por Estados Unidos.

Coca

Evo Morales comenzó a planificar la construcción de las dos plantas industrializadoras de coca, la intensión es dar valor agregado a 4.000 toneladas de la hoja. Venezuela sería el primer país comprador de los productos confirmaron autoridades de ese país.

  • Brief News

India's Tata wins race for Corus

Indian company Tata Steel's bid for the Anglo-Dutch steelmaker Corus - which was created from the merger of British Steel and Hoogovens - beat that of its Brazilian rival CSN. Britain's Takeover Panel said Tata had won after offering 608p per share, valuing Corus at £5.75bn ($11.3bn).

Chavez to assume powers to remake Venezuelan society by decree

Chavez is expected to be granted special powers to make sweeping changes to the country's national life. Members of the National Assembly are due to finalize a law allowing Chavez to rule by decree over the energy sector and 10 other broad areas. Chavez has said he wants to speed up his "maximum revolution" but critics say it will be an abuse of power. The US has accused him of threatening democracies in Latin America.

EU moves to cure vodka headache

The European Parliament has suggested a possible solution to a dispute between EU states over the definition of vodka. Poland, Sweden and Finland say only spirits distilled from grain or potato are truly entitled to be called vodka. Other countries, such as Hungary, Spain and the UK, say there is no reason to change current rules, which allow it to be made from any agricultural produce. MEPs have now said vodka not made from grain, potato or molasses should simply have its ingredients clearly labeled. Vodka made from more than one ingredient would have to be labeled as "blended vodka".

Germany backs away from EU-wide Holocaust laws

The German EU presidency said Monday that it would support EU anti-racism legislation that would impose maximum one to three-year terms of imprisonment for "public incitement to hatred and violence for reasons of racism or xenophobia," but would not push for any law that would explicitly ban swastikas or criminalize Holocaust denial across the EU . The proposed Framework Decision would criminalize "public approval, denial or gross minimization of genocide, crimes against humanity and war crimes" but would allow each EU country, through a national or international court, to determine what constitutes genocide, crimes against humanity and war crimes for purposes of the ban. The reluctance of some member states to criminalize swastikas and Holocaust denial most likely caused Germany to forgo plans for EU-wide prohibitions despite earlier statements . Last week, EU Freedom, Security and Justice Commissioner Franco Frattini urged the 27 EU nations to adopt EU-wide laws criminalizing denial of the Holocaust and incitement of hatred and racial violence; on Friday, however, Italy published a draft law proposing prison sentences for race-based hate crimes, but not making Holocaust denial an explicit crime.

How the White House put its own spin on research

The Bush administration was on Tuesday accused of systemic tampering with the work of government climate scientists to eliminate politically inconvenient material about global warming. At a hearing of Congress, scientists and advocacy groups described a campaign by the White House to remove references to global warming from scientific reports and limit public mention of the topic to avoid pressure on an administration opposed to mandatory controls on greenhouse gas emissions. Such pressure extended even to the use of the words "global warming" or "climate change", said a report released yesterday by the Union of Concerned Scientists and the Government Accountability Project. The report said nearly half of climate scientists at government agencies had been advised against using those terms.

Brazil raids target drugs gangs

At least 14 people are reported to have been arrested in Brazil as part of a series of raids on drugs gangs. The six-state operation is said to have targeted a global drug-trafficking and money-laundering cartel. The raids come after a two-year investigation involving Brazil, the US and several European countries. The federal authorities are reported to be searching for another 80 suspected members of the cartel over allegations of money-laundering and drug-trafficking to Europe, Africa and the US.

Emergency pill for Chilean girls

Chile's president has signed a decree so that the morning-after contraceptive pill can be given to girls as young as 14 without their parents' consent. Earlier this month the Constitutional Court ruled that the executive could not authorize the pill in such cases.

Bolivia route blockaded over oil

Protesters in south-east Bolivia have blocked the only road that links the country with Argentina and Paraguay. They want more state control over oil and gas firms and say nationalization has not gone far enough. Demonstrators object to the fact that the president has renegotiated deals with foreign oil firms rather than take back control of the operations.

Microsoft starts Vista hard sell

Microsoft has launched its latest version of Windows, called Vista, with more than 100m computers predicted to be using it worldwide within 12 months. The new operating system (OS) boasts an improved interface and security tools. But not all PCs will be able to run Vista as it requires a rather powerful and recent machine.

Delta gains bankruptcy financing

Delta Air Lines has received promises of $2.5bn in financing as it aims to emerge from bankruptcy protection as an independent company. Financiers are JPMorgan Chase, Goldman Sachs, Merrill Lynch, Lehman Brothers, UBS, and Barclays Capital. The exit cash will help Delta stand alone, despite an unwanted $9.9bn takeover bid from rival US Airways.

  • Daily Press Review

Africa

UN boss humbled by poverty in Kibera slums
East African Standard, Liberal daily of Nairobi, Kenya

GUINEA-BISSAU: UN rep speaks on negotiating end to crisis with former PM
Integrated Regional Information Networks (United Nations), Nairobi, Kenya

Fidel's battle for health 'is not lost'
Mail and Guardian, Liberal daily of Johannesburg, South Africa

Pensioner gets his money back
The Sowetan, Liberal daily of Johannesburg, South Africa

Levy back from AU summit
Times of Zambia, Government-owned daily of Lusaka, Zambia

Americas

Some motorists placing highway workers in danger
Barbados Advocate, Independent daily of St Michael, Barbados

$2b ganja bust
Jamaica Gleaner, Centrist daily of Kingston, Jamaica

Mexico sends drug kingpins to US
The Guadalajara Colony Reporter, Independent weekly of Guadalajara, Mexico

Asia Pacific

EMERGING INDIA / India's IT visionaries in limelight
Daily Yomiuri, Conservative daily of Tokyo, Japan

Chinese president arrives in Cameroon for state visit
People's Daily Online, Pro-government daily of Beijing, China

Clark raped woman, rules jury
The Sydney Morning Herald, Centrist daily of Sydney, Australia

Reconstruction Funds for Earthquake Victims' Homes Remain Unclear
Tempo, Independent weekly of Jakarta, Indonesia

PM, NBA yet to Pick Representatives for JC
The Himalayan Times, Independent daily of Kathmandu, Nepal

Sothinathan: Good laws to protect environment but little or no implementation
The Sun, Independent daily of Kuala Lumpur, Malaysia

Europe

The Rise and Fall of Germany's Coal Mining Industry
Deutsche Welle, International broadcaster of Cologne, Germany

Poll: Finns want politicians to take action on climate change
Helsingin Sanomat, Centrist daily of Helsinki, Finland

Court finds Khodorkovsky's transfer to punishment cell in June illegal
Interfax, Government-owned news agency, Moscow, Russia

Inflation threatens to 'crush' economy
Irish Examiner, Centrist daily of Cork, Ireland

Putin's Next Stop Will Be the Mideast
The Moscow Times, Independent, English-language daily of Moscow, Russia

Paris celebrates its 'gasworks' of art
The Scotsman, Centrist daily of Edinburgh, Scotland

Divisions emerging over Iran
The Times, Conservative daily of London, England

Snow buries Turkey's east
Turkish Daily News, Independent daily of Istanbul, Turkey

Middle East

Land of fire and smoke
Al-Ahram Weekly, Semi-official, English-language weekly of Cairo, Egypt

Envoys Chosen on Merit: Saud
Arab News, Pro-government, English-language daily of Jidda, Saudi Arabia

Netanyahu Draws Likud Towards National Religious Party
Arutz Sheva, Pro-settler publication of Israel

Mattar lights up UAE skies
Gulf News, Independent daily of Dubai, United Arab Emirates

PM okays eastward move of part of W. Bank barrier
Ha`aretz, Liberal daily of Tel Aviv, Israel

The entire humanity honor you O' Hossein
Islamic Republic News Agency, Government-owned news agency of Tehran, Iran

Katsav moves out of the presidential residence
The Jerusalem Post, Conservative daily of Jerusalem, Israel

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The messages that appear in this newsletter are for informational purposes only. They are not intended to be and should not be considered legal advice nor substitute for obtaining legal advice from competent, independent, legal counsel in the relevant jurisdiction.

Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. The information contained on this list may or may not reflect the most current legal developments.