West Virginia Business Litigation Lawyer & Attorney : Law Office of Jeffrey V. Mehalic : Charleston, Huntington, Parkersburg

    The Supreme Court of Appeals of West Virginia issued a decision on June 13 dealing with dissenting shareholders’ rights, an aspect of corporate law that the Court does not often address. 

    In Dodd v. Potomac Riverside Farm, Inc., 2008 WL 2390159 (June 13, 2008), the Court, in a per curiam opinion, considered rulings from the Circuit Court of Berkeley County, West Virginia, which established the fair value of the appellants’ shares in a corporation that owned a family farm and the rate of interest to which the appellants were entitled, and addressed the appellees’ motion for attorney’s fees.   

    The statute under which the appellants dissented from the proposed corporate action, West Virginia Code § 31-1-123, has since been repealed, but applied to the action because it was in effect when the appellants filed their lawsuit. 

    The Court’s rulings are specific to the facts of the appeal and do not represent any new pronouncements of law.  All but one of the Court’s syllabus points address the standard of review to be applied to a circuit court’s rulings, and the other one holds that prejudgment interest is simple in nature, unless a statute or regulation provides otherwise. 

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    One of the rulings made by Monongalia County Circuit Judge Robert Stone in West Virginia University’s lawsuit against its former football coach, Rich Rodriguez, dismissed the third-party complaint filed by Rodriguez against the West Virginia University Foundation, Inc., WVU’s fundraising arm.

    As a result of its dismissal, the Foundation has asked, pursuant to Rule 11 of the West Virginia Rules of Civil Procedure, that Rodriguez be made to pay its attorney’s fees of $29,461.00 and costs of $826.44.  Here is its motion filed on April 16, which quotes Rodriguez’s counsel as suggesting that the purpose of naming the Foundation was to obtain a tactical advantage in the litigation against WVU. 

    Rodriguez had alleged in his third-party complaint that he needed the records maintained by the Foundation in order to prove that contributions to WVU had not been affected by his resignation: 

The only way for Richard Rodriguez to obtain a fair trial and to see if damages actually have been incurred by West Virginia University is to review the books and records of the Foundation, along with donations that have been made since his departure, compared with donations prior to his departure from the West Virginia University.

Rodriguez also alleged that the Foundation was WVU's alter ego and was a necessary party to the litigation because it would receive any payments made by Rodriguez as part of his buyout.  

    The Foundation’s position is that its counsel asked Rodriguez to voluntarily dismiss the action, and when he would not do so, it had “to fully participate in the litigation.”  The affidavit attached to the motion establishes that the Foundation’s counsel expended 125.8 hours in its representation.  The motion also notes that “[a]dditional detail [regarding the billing entries] will be supplied to opposing counsel and the Court for review after agreement regarding confidentiality and the attorney client privilege.” 

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    Last year, a jury returned a verdict for $196.2 million in punitive damages against DuPont in the final phase of a trial in which 7,000 Harrison County, West Virginia residents claimed that DuPont injured them and contaminated their property by releasing substances including cadmium, arsenic, and lead at its zinc smelting site.  The jury also awarded $55.5 million for the plaintiffs’ property damage claims and approved a medical monitoring program.

    DuPont’s efforts to overturn the jury’s determinations through post-trial motions have not been successful.  Here are the relevant orders entered by the Circuit Court of Harrison County on February 25:

Final Order Regarding the Scope, Duration and Cost of the Medical Monitoring Plan

Order Regarding Plaintiffs’ Counsels’ Fees and Litigation Expenses and Class Representatives Award and Incentive Payments

Order Denying Dupont’s Motion for Judgment as a Matter of Law, or, in the Alternative, to Decertify the Class

Order Denying Motion for New Trial

Order Denying Dupont’s Motion to Vacate or Reduce Punitive Damages Award under Garnes v. Fleming Landfill

    The plaintiffs presented evidence regarding the medical monitoring plan at a hearing in January, and offered the testimony of a specialist in occupational and environmental medicine, a certified life care planner, and a forensic economist.  DuPont offered the testimony of a certified public accountant, who had expertise in projecting future medical costs.  But as the following footnote in the medical monitoring order makes painfully clear, DuPont would have been better off without any expert testimony:

Of the plethera [sic] of witnesses that testified at the scores of hearings and trial in this matter, the Court finds Mr. Meneberg [DuPont’s expert] to be the least credible of all. It is clear that if one has the money, Mr. Meneberg will provide an opinion whether it is within his field of expertise or not and whether there is any factual or professional basis for the opinion or not. In the sixteen years as a sitting trial judge, Mr. Meneberg is the biggest ‘hack’ to have testified before this Court. 

    The order approving the medical monitoring plan provides that the plan will be reviewed every five years, will have a duration of 40 years (during which the circuit court will retain jurisdiction), will cost $129,625,819.00, and will be funded on a “pay as you go” approach, which had been advocated by DuPont, rather than on the fully-funded basis that the plaintiffs had wanted.  Under the “pay as you go” approach, DuPont will make payments, which will be escrowed, then disbursed and replenished, as the plan proceeds, depending upon such factors as participation and cost, rather than pay for the entire cost of the plan at the outset.

    The circuit court also awarded the plaintiffs attorneys’ fees of $127,108,410.64 and expenses of $7,904,646.65 from the common fund of $381,363,341.25 (which consists of the total of the cost of the medical monitoring plan, the punitive damages award, and the property damage award).  Also, in its order, the circuit court denied the class representatives’ motion for incentive payments to each one (there are 10) of $75,000.00 for their “cooperation and assistance,” which would have come from the common fund.  However, the Associated Press reported earlier this month that, at the plaintiffs' counsel's request, the circuit court reconsidered and approved an incentive payment of $50,000 to each class representative, with the funds to be paid from the attorneys’ fees rather than the common fund.

    DuPont is appealing the verdicts and the post-trial rulings, according to this statement from its general counsel, Stacey J. Mobley.  I will confirm the status of DuPont’s petition for appeal, and post the petition and the plaintiffs’ response as soon as they are forwarded to the Supreme Court of Appeals.  The Supreme Court’s Spring Term ends on June 26, which means that the appeal, if granted, will not be argued and decided until the Fall Term.

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    In January, I wrote about the so-called tripartite relationship among an insured, the insured’s lawyer retained and paid by the insurance company, and the insurance company, and an appeal before the Supreme Court of Appeals that illustrated some of the perils of the relationship.

    The Court  has issued its decision in Horkulic v. Galloway, 2008 WL 481000 (W.Va. 2008), which involved a dispute between the lawyer for William Galloway, the defendant in a legal malpractice case, and TIG Insurance Company, which insured Galloway and had retained his lawyer, William Wilmoth.  Galloway’s lawyer claimed that a settlement had been reached with plaintiff Jeffrey Horkulic, in which Galloway would confess judgment in the amount of $1,500,000, but that Horkulic would accept Galloway’s policy limits of $500,000 in satisfaction of his claim, would not pursue Galloway’s personal assets, and would not record the judgment. 

    TIG argued that the purported settlement would enable Horkulic to use Galloway’s confession of judgment in a separate bad faith action in order to establish the value of that claim, and appealed the Circuit Court of Hancock County’s order approving the settlement, including Galloway’s confession of judgment. 

    in a unanimous opinion by Justice Joseph Albright, the Court noted the difficulties presented by the parties' relationships:  

In the present case, TIG was not permitted to participate in the settlement enforcement hearing and thus cannot be deemed to have had a full and fair opportunity to litigate the issue.  More specifically, the order in question expressly declares that TIG will have the opportunity to challenge the $1.5 million confessed judgment by Mr. Galloway.  This case presents the classic tripartite configuration in which a party to a bifurcated bad faith action was not a party in the underlying action, despite the reality that such entity furnished counsel for the defendant in the underlying action.  The fact remains that Mr. Wilmoth, as counsel for Mr. Galloway hired through TIG, was not protecting the interests of the insurance company, TIG, while the settlement negotiation matters were being litigated in the lower court.  His duties as counsel ran solely to the interests of Mr. Galloway.

    The Court did not reverse the circuit court's order approving the settlement, but clarified TIG's right to challenge Galloway's confession of judgment:

Based upon the foregoing, we hold that a consent or confessed judgment against an insured party is not binding on that party's insurer in subsequent litigation against the insurer where the insurer was not a party to the proceeding in which the consent or confessed judgment was entered, unless the insurer expressly agreed to be bound by the judgment.  Therefore, an attack on the consent or confessed judgment in the subsequent litigation by an insurer who did not expressly agree to such judgment is a permissible direct, not collateral, attack on the consent or confessed judgment ...  The primary issue to be resolved in this appeal is the extent to which the specific August 25, 2006 order [approving the settlement] under inquiry may be utilized against TIG when the bifurcated bad faith claim is ultimately litigated.  Thus, subsequent to the filing of this opinion, the lower court will progress forward on the course it previously set, dissolving the stay and proceeding with discovery on the bad faith claim.

    In other words, because TIG did not agree to be bound by Galloway's confession of judgment, TIG is free to challenge it during the litigation of the bad faith case.  But because the  bad faith case has not been litigated yet,  the Court cannot predict what effect, if any, the confession of judgment will have.

    In addition to TIG's appeal of the order approving the settlement, it had also sought a writ of prohibition against the circuit court's award of attorney's fees to Horkulic's counsel for  having  to enforce the settlement.  The circuit court awarded fees of $500 per hour for 101.5 hours and $54.00 in expenses.  TIG's challenge was based on its lack of opportunity to participate before the circuit court and that the award was excessive.

    The Supreme Court granted the writ based on TIG's lack of participation: "Thus, under the facts of this case, we find that the lower court erred in granting attorney fees against TIG without allowing TIG to participate in the evidentiary hearing addressing the pertinent issues culpability [sic] for the extensive delays of this case.  It is appropriate to grant a writ of prohibition and to remand this matter for a full evidentiary hearing to determine the extent of TIG's culpability in delaying the settlement." 

    Although the Supreme Court did not explicitly address the amount of the award, under West Virginia case law, such as Aetna Cas.& Sur. Co. v. Pitrolo, 342 S.E.2d 156 (W.Va. 1986), part of the circuit court's inquiry will necessarily focus on the reasonableness of the fees.

    Justice Robin Davis concurred on behalf of herself and Chief Justice Elliott Maynard in order to point out that by granting TIG's petition for a writ of prohibition, "this Court has made no determination with respect to the reasonableness of those fees." 

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    A post earlier this week in Stephen D. Rosenberg’s Boston ERISA & Insurance Litigation Blog ties in nicely with an appeal argued in front of the Supreme Court of Appeals of West Virginia on Tuesday, which was the first day of the Court’s Spring Term.  Here is the Court’s calendar for the entire term.

    The post was entitled “The Three Rules of the Tripartite Relationship,” which refers to the relationship established when an insurance company’s policyholder is sued, and the insurance company provides a defense as required by the policy.  Even though the policyholder’s lawyer is retained and paid by the insurance company, he or she represents the policyholder’s interests exclusively.  But the tripartite relationship has the potential to create conflicting loyalties on the part of the policyholder’s counsel, whose obligation to represent the policyholder may be at odds with the interests of the insurance company that has retained him or her. 

    Stephen linked to an article entitled "On the Horns of a Defense Counsel Dilemma," and also proposed three rules of thumb that should govern the tripartite relationship.  Roy Harmon, who writes Health Plan Law, also wrote about the arrangement yesterday with a post entitled "Appointed Defense Counsel: The Small Print Enlarged."

    The tripartite relationship was at issue before the Supreme Court of Appeals in Jeffrey A. Horkulic, et al. v. William O. Galloway, et al., No. 33352, which involved an underlying legal malpractice claim.  Defendant Galloway’s malpractice carrier, TIG Insurance Company (“TIG”), appointed counsel for him, and he also retained his own private counsel.  A dispute developed between Galloway’s appointed counsel and TIG as to whether a settlement with Horkulic had been reached.  Galloway’s appointed counsel said the parties had reached a settlement, while TIG’s claims adjuster said they had not.

    The sticking point between Galloway and TIG was a provision that Galloway would confess judgment in the amount of $1,500,000, but that the plaintiff would accept Galloway’s policy limits of $500,000 in satisfaction of his claim, would not pursue Galloway’s personal assets, and would not record the judgment.  TIG's objection was that the plaintiff, who had also filed a third-party bad faith claim against TIG, would be able to use the confession of judgment in the bad faith case in order to establish his damages.  The Circuit Court of Ohio County entered an order approving the settlement, including Galloway's confession of judgment, and TIG appealed.

    As you can see from the circuit court’s order, as well as the parties’ briefs (here are TIG's brief, the plaintiff’s brief, and TIG's reply brief), the plaintiff’s appointed counsel clearly was at odds with TIG, the entity who retained and paid him. This conflict is what can make the tripartite relationship so problematic. 

    At the oral argument, which I watched via the Court’s webcast, TIG argued that it would be unable to challenge the confession of judgment during the prosecution of the third-party bad faith case, for the purpose of determining the plaintiff’s damages.  The plaintiff’s counsel repeatedly assured the Court that TIG could object to the judgment, but as some members of the Court observed, until the bad faith case is underway and the confession of judgment becomes an issue, TIG’s concern may be premature.

    Finally, one other issue that was consolidated for hearing on Tuesday with the underlying appeal was State ex rel. TIG Insurance Company v. The Honorable Arthur M. Recht, et al., No. 33353, which was TIG’s petition for a writ of prohibition against the circuit court’s award of attorney’s fees to Horkulic’s lawyer.  The circuit court ordered TIG to pay attorney’s fees at the rate of $500 per hour for the work involved in enforcing the plaintiff’s settlement with TIG, which amounted to $50,750.  Here are TIG’s petition, Galloway's response, and the plaintiff’s response.  (Incidentally, Galloway's position was that the circuit court did not exceed its authority in awarding attorney's fees and that the amount of the award was not excessive.)  The Supreme Court was not alarmed about the amount of the hourly rate, so I don’t anticipate that the Court will disturb the award.

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    Over the summer, I wrote about the legal troubles of Shirley A. Cunningham, Jr., William J. Gallion, and Melbourne Mills, Jr., the three Fen-Phen lawyers who are still in a Kentucky jail, following United States District Judge William Bertelsman’s decision to incarcerate them pending their trial on wire fraud charges in January 2008.

    As I explained in June, Gallion and Cunningham purchased a thoroughbred named Curlin for $57,000 in 2005, then sold 80% of their interest in February for $3.5 million.  Curlin has had a spectacular year as a three year old, winning the Preakness, running second in the Belmont, and third in the Kentucky Derby. Then, last Saturday, Curlin won the $5 million Breeders' Cup Classic, which entitles him to 54% of the purse, or $2.7 million. 

    In my post, I had pointed out that there would likely be litigation about Curlin's ownership, as Angela Ford, the lawyer representing most of the plaintiffs whom Gallion and Cunningham are accused of defrauding, alleged that Gallion and Cunningham bought the horse with money improperly withheld from her clients, which would make her clients the horse's owners and would void the sale of the 80% interest.

    The Daily Racing Form reports that last Thursday, Boone County (Kentucky) Circuit Court Judge William Wehr gave the 418 plaintiffs control over Tandy LLC, a corporation owned by Gallion and Cunningham, which owns Midnight Cry Stable, which in turn owns 20% of Curlin.   According to the article, Angela Ford says her clients want to sell their interest in Curlin, as do his other owners.   Curlin is likely to be named the Horse of the Year, which will increase his value even more.

    What is not clear (at least from the DRF article) is how Judge Wehr could make this determination now, when Cunningham and Gallion (as Curlin's part owners) have not gone to trial yet on the federal fraud charges, and thus have not been found guilty of anything.  Typically, when criminal and civil actions arise from the same conduct, the civil action has to be stayed until the criminal proceeding is resolved.  An acquittal in the criminal case is not necessarily a bar to a successful civil action (ask O.J. Simpson), but the criminal charges, which have a higher standard of proof, etc., take precedence. 

    This ruling also puts Curlin's ownership in limbo, because I don't know who would buy any interest at this point, until the issue of the identity of the true owners has been resolved finally.  Having 418 co-owners of a 20% interest in a race horse is a recipe for disaster.

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    Long-term disability cases generate an enormous amount of litigation, almost always in federal court because of the scope of ERISA pre-emption.  ERISA also bars state law claims, such as negligence and breach of contract, and compensatory and punitive damages.  Thus, a claimant is typically limited to the amount of the benefits at issue in his or her claim and possibly an award of attorney’s fees.

    Further, if the plan grants discretion to the administrator to make eligibility decisions, as many, if not most, plans do, the court is obligated to defer to the administrator’s decision, which means that unless the court finds that the administrator abused its discretion (the “arbitrary and capricious” standard), the court must affirm the decision, even if the court would have decided the issue differently.

    But out of federal court for the Northern District of West Virginia comes a decision, admittedly with an atypical set of facts, which demonstrates that a plaintiff can prevail in an LTD claim.  In Gower v. AIG Claim Services, Inc., 2007 WL 2119262 (N.D.W.Va.), Kathy Gower filed a claim for accidental death benefits resulting from the death of her husband, a 41 year old coal miner.  AIG provided a group accident insurance policy through Peabody Holding Company, the parent of Gower’s husband’s employer, Eastern Associated Coal Corporation. 

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    A few months ago, I wrote about the changing economics that were encouraging, if not forcing, defense firms to take contingency cases that were traditionally the work of plaintiffs' firms.  In this month's issue of Litigation Update, which is published by the American Bar Association's Section of Litigation, Stewart Weltman has written an article entitled Contingency Litigation 101 -- for Big Firms, which identifies several strategies for firms that are considering a move into contingency fee litigation.
 
    As Mr. Weltman points out, "to be more competitive and obtain prime litigation matters, firms that never considered contingency are more receptive to some form of it as part of their compensation for both plaintiff and defense matters."  The significance of this development is that not only are defense firms competing against plaintiffs' firms for work, but they are having to adapt their own compensation structure from hourly fees to contingency work.  The competition works both ways: defense firms can represent plaintiffs, but corporations are frequently turning to plaintiffs' firms for representation in defense matters, because of the client's concern about cost or because the plaintiffs' firm may be more flexible in what it can charge and how and when it gets paid.

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    Last week, I wrote about the three Kentucky lawyers who are accused of taking an extra $65 million from their Fen-Phen clients.  On August 10, United States District Judge William O. Bertelsman granted the defendants’ request for a continuance of their October 15 trial, but ordered the defendants taken into custody until their new trial in January 2008.  He was concerned that if the defendants remained free on bond, they were flight risks and also could conceal the monies they allegedly took from their clients.  Then, on August 14, he set a hearing for August 21 regarding the defendants’ detention based on information that had just come to light. 

    Since then, on August 15, the defendants filed their notices of appeal with the Sixth Circuit Court of Appeals from the District Court’s order revoking their bond and remanding them into custody.

    Also on August 15, the defendants filed emergency motions objecting to the jurisdiction of the District Court to proceed with the hearing on August 21 in light of their notices of appeal.  On August 20, the Court granted the defendants’ emergency motions to the extent that it agreed that the notices of appeal may deprive the court of jurisdiction and therefore unable to hold the detention hearing on August 21.  The Court canceled the hearing, but did not take any action regarding the defendants’ detention, however, so they remain in custody.  

    Finally, on August 20, the defendants moved to recuse Judge Bertelsman under 28 U.S.C. § 144 on the grounds that he has a “personal bias or prejudice either against him [the defendant] or in favor of any adverse party.”  Here is defendant William J Gallion’s affidavit, which was submitted in support of the motion to recuse.  As of today, there haven't been any new filings.

    A couple of observations.  First, as I read 28 U.S.C. § 144, if the affidavit is “timely and sufficient,” then Judge Bertelsman’s recusal is mandatory: “such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.”   So it seems that the judge whose recusal is being sought determines whether the affidavit is adequate, which may not be a good position for the defendants. 

    Second, Judge Bertelsman’s concern for the individuals who were clients of the defendants is obvious in his order, as reflected by his discussion of the Crime Victims' Rights Act.  He was troubled that the defendants' clients have to wait on the outcome of the criminal trial in order to have their civil claims resolved. 

    While his concern for the interests of the individuals is laudable, it has come at the expense of the defendants’ rights.  Pretrial detention serves no purpose in this case, which is what I predict the Sixth Circuit will hold.  Interestingly, Gallion's affidavit says that after Judge Bertelsman revoked the defendants' bond and ordered them into custody, Gallion's lawyer told the Court that in that case, they'd go to trial on October 15.  But according to Gallion, Judge Bertelsman continued walking off the bench and didn't respond.  

Tags: Attorney Fees, Courts, Criminal Litigation, Public Policy

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    More twists in the case involving the three Kentucky lawyers who are awaiting trial on charges they took an extra $65 million in fees from their Fen-Phen clients. 

    In June, I wrote about the wire fraud indictments issued against William J. Gallion, Shirley A. Cunningham, Jr., and Melbourne Mills, Jr. by a federal grand jury in Covington.  The three are awaiting trial, which had been set to begin on October 15, and had been free on their own recognizance. Their lawyers requested a continuance to have additional time to review documents, and the prosecution joined in the request.

    According to The (Louisville) Courier-Journal, United States District Judge William O. Bertelsman expressed concern about the incentive for the defendants to transfer the funds to an off-shore account or themselves to flee if they remained free on bail, and advised the defendants and their counsel that if he granted their motion, he would revoke their bail. (The defendants had already surrendered their passports.)  Following a hearing on the motion, Judge Bertelsman granted the continuance and ordered the defendants taken into custody and incarcerated in the Boone County Jail.  Trial is now set for January 7, 2008.

    But as of Tuesday afternoon, there’s another development.  The Courier Journal reports that based on new information that was not available last week, and which he did not describe, Judge Bertelsman has set a hearing for next Tuesday. He has also ordered Gallion, Cunningham, and Mills to submit complete financial statements prior to the hearing.  The defendants' lawyers had already filed notices of appeal for the order revoking their clients' bail, and did not request next Tuesday's hearing. 

    The Courier-Journal  has another article that features commentary from well-known legal ethics experts about the ruling.  Judge Bertelsman's comments at last Friday's hearing, as also described in the article, demonstrate a concern for the public's perception of the legal profession as a whole.  But, as the ethics experts pointed out, his concern should be for the individual defendants.

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    A couple of weeks ago, I wrote about the rehearing petition filed by the plaintiffs regarding the Supreme Court of Appeals of West Virginia's decision in Schrader, Byrd & Companion, P.L.L.C. v. Marks, 2007 WL 1039070 (W.Va.).  The Court had held that the plaintiffs' lawyers could collect a contingency fee on the royalty payments received by their clients under a coal lease, even though the amount and durations of the clients' payments, and hence, the fees, were unknown. 

    The Court considered the petition yesterday, and rejected it 3-2, with Justices Maynard and Benjamin voting to rehear the case.  Both of them dissented from the original decision. 

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    This is an update to a post from last month regarding the Supreme Court of Appeals of West Virginia's decision in Schrader, Byrd & Companion, P.L.L.C. v. Marks, 2007 WL 1039070 (W.Va.), which upheld the application of a contingency fee contract to royalty payments due the client under a coal lease, even though the amount of the payments, and thus the fees, and the duration of the payments are unknown.

    Christopher Riley (my law school classmate), whose firm has represented the plaintiffs, asked the Supreme Court of Appeals on May 7 to rehear the case.  As I will explain, Chris is in a somewhat unenviable position. 

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    This is a topic that has intrigued me for some time, namely, the phenomenon of firms that have traditionally represented only defendants or insurance companies deciding to represent plaintiffs, sometimes on a contingency fee basis, which has been limited previously to plaintiffs' firms.  In a post last month, the Wall street Journal  Law Blog wrote about a "traditional" Minnesota defense firm that received a contingency fee in excess of $100 million for its work on the Exxon Valdez litigation.

    Obviously, the fees can be huge in contingency fee cases.  But more than that, many defense firms are realizing that their business model no longer works.  A friend of mine who excels at business development and practices law in what remains a more or less traditional defense firm told me that defense firms, including his own, began representing plaintiffs, as a purely business proposition, and not based on any change in philosophy. 

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    In some cases, a client's recovery involves payments that will be received on a periodic basis.  While an attorney's fees generally can be calculated in advance and paid in full, what happens if the amount of the client's payments varies and the duration of the payments is unknown?  How much does the attorney receive and for how long?  The Supreme Court of Appeals of West Virginia recently addressed these issues in a case involving attorney's fees on royalty payments under a coal mining lease. 

    In Schrader, Byrd & Companion, P.L.L.C. v. Marks, 2007 WL 1039070 (W.Va.), the clients appealed the summary judgment in their attorneys' favor as to the applicability of a contingency fee arrangement to royalty payments under a coal mining lease.  In affirming the judgment, the Supreme Court of Appeals of West Virginia held: "an attorney fee arrangement whereby the attorney receives a percentage of funds as they are periodically received by the attorney's client is not, as such, either suspect or impermissible."

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