ERISA Counsel and Attorney-Client Privilege: Protecting Counsel Advice to Plan Fiduciaries

Description

Courts and ERISA plan fiduciaries and beneficiaries continue to grapple over the critical issue of whether a fiduciary exception applies to privileged communications between fiduciaries of ERISA-governed plans and their or the plan’s legal counsel.

In Sept. 2014, the Delaware Supreme Court adopted the fiduciary exception to the privilege where there is “good cause” to believe a breach of fiduciary duty occurred. Since more than half of all publicly traded companies are domiciled in Delaware, the ruling potentially has wide implications.

In June 2014, the Arizona Court of Appeals (Kipnis) adopted the fiduciary exception consistent with the Supreme Court’s Jicarilla decision—it applies to legal advice regarding trust administration but doesn’t when the fiduciary sought legal advice regarding non-administration issues, such as personal liability. The Ninth Circuit has upheld the fiduciary exception in an ERISA claim, while the Third Circuit hasn't.

The fiduciary exception issue remains in the murky waters of conflicting, nuanced and fact-intensive court rulings. So, counsel for fiduciaries must understand situations when the fiduciary exception may or may not apply through a complex analysis of jurisdiction, and content, timing and reason for the communication. Fiduciary counsel must guard against waiving the privilege by permitting third parties (accountants, plan representatives, etc.) to take part in discussions of legal advice.

Listen as our authoritative panel of ERISA attorneys analyzes the parameters of the fiduciary exception and provides approaches to preserve attorney-client privilege when communicating with plan fiduciaries, and explains how to assert and defend the privilege in litigation. The panel will offer lessons from recent rulings and arguments for and against the fiduciary exception to keep confidences protected.