of legal matters including representing employers on Employee Retirement Income Security Act (ERISA) and benefit plans, litigation and privacy and open records requirements. This article was written with the assistance of Mary Katherine Rawls, who will graduate in 2014 from the University of Tennessee College of Law. 550 Main Street W. Knoxville, Tennessee 37902 865.312.8814 Phone 865.524.1773 Fax wemason@kmfpc.com bcollins@kmfpc.com www.kmfpc.com employee benefits plan administrator for ABC Corporation, meets with Steve, an attorney, for legal assistance in deciding whether to deny benefits to Tom, an ABC Corporation employee who is appealing a prior denial of benefits. After conferring with Steve, Janet decides to deny Tom benefits. Tom subsequently brings an Employee Retirement Income Security Act (ERISA) claim against the plan to recover his benefits, and he demands access to the contents of Janet and Steve's prior communications. Is Tom entitled to access? Plan administrators and attorneys have traditionally assumed that the attorney-client privilege protects such communications as confidential under the belief that plan administrators, and not plan beneficiaries, are the attorneys' clients. Depending on the jurisdiction, to Steve and Janet's communications due to the "fiduciary exception" to the attorney-client privilege. This article will explore the ramifications of the fiduciary exception to the attorney-client privilege in the fiduciary and plan beneficiary context. The fiduciary exception provides that when an attorney gives advice to a client who is acting as a fiduciary for third- party beneficiaries, the attorney owes the beneficiaries a duty of full disclosure. fiduciary exception addresses the notion that "at least as to advice regarding plan administration, a trustee is not `the real client' and thus never enjoyed the privilege in the first place." the clients, have access to the substance of legal communications relating to plan administration, especially since the beneficiaries' benefit and at their expense. all, but instead defines the scope of the attorney-client relationship to include beneficiaries, making them deserving of the attorney-client privilege. attorneys owe beneficiaries a duty of full disclosure and cannot rely on the attorney-client privilege to withhold from beneficiaries the substance of advice given to fiduciaries. In the ERISA context, the fiduciary exception generally only applies to communications with an attorney related to plan administration, including benefits decisions, but not to communications following a final benefits decision or "addressing a challenge to the plan Privilege: Who is the Client in the Administration of ERISA Benefits? |