The following was posted by our associate Seth Hanft on our sister blog Employee Benefits Law Report last Friday. It provides a great reminder to in-house counsel addressing employee benefit claims that their communications with their benefits personnel regarding employee benefits claims may not be protected by the attorney-client privilege. Keep in mind that both counsel and benefits managers often wear fiduciary and non-fiduciary hats when addressing benefits plans issues and it is not always clear which hat they are wearing when. Therefore, to avoid potential spill over of this fiduciary exception to their other areas of responsibility, in house – and outside – counsel would be best advised to: (1) separate as best as possible their advice regarding fiduciary and non-fiduciary (e.g. plan sponsor, settlor, and employment) issues, so that privileged and non-privileged advice is not communicated at the same time and (2) be explicit in written communications as to the non-fiduciary purpose of legal advice being provided regarding non-fiduciary issues.

“Document everything” is often a best practice, but when you are an ERISA plan fiduciary communicating with your attorney, you may need to throw that thinking out the door. In Solis v. Food Employers Labor Relations Association the Fourth Circuit joined the Second, Fifth, Seventh, and Ninth Circuits in holding that the attorney-client privilege does not apply as to trust beneficiaries regarding communications between an ERISA plan fiduciary and an attorney when such communications relate to plan administration. The U.S. Supreme Court also recently discussed the fiduciary exception and its rationale in the context of ERISA matters in a recent non-ERISA decision, United States v. Jicarilla Apache Nation.

Continue Reading The Fiduciary Exception to the Attorney-Client Privilege — “Document Everything” is a Best Practice, Except When It Isn’t