capacity." employee whose COBRA coverage was terminated after the plan administrator conferred with an attorney was entitled to "know what the legal opinion was, in oral and written forms." exception to pre-decisional legal advice, despite the prospect of post-decisional litigation, on the grounds that "denying benefits to a beneficiary is as much a part of the administration of a plan as conferring benefits to a beneficiary." including the ultimately disappointed beneficiary, are entitled to know what the legal opinion was. to apply where a claimant files a timely administrative appeal of a denial of benefits, since the benefits decision is not considered "final" during the pendency of the administrative appeal. and substantial possibility of litigation," the fiduciary exception typically does not apply. For example, in one case, communications following a claimant's counsel's argumentative correspondence demanding payment of the claim in question and threatening the pursuit of claims in court were ruled protected by the attorney-client privilege. occurring after a final benefits decision remain subject to the fiduciary exception for all beneficiaries other than the disappointed beneficiary; however, language from existing cases suggests that once a final benefits decision has been made, or there is a real and substantial possibility of litigation, the fear of any beneficiaries gaining access. is also important in determining the fiduciary exception's applicability. Because an employer often wears two hats in plan administration one involving the fiduciary duty owed to its employees and the other involving the employer's own interests in areas such as plan design, amendment and termination communication requires an examination of its content and context to determine whether it was for the benefit of the beneficiaries or employer. For example, when a communication is for the benefit of an employer in connection with its consideration of plan adoption, courts generally find that the communication encompasses a non-fiduciary matter and is inaccessible by beneficiaries. for attorneys and plan administrators in light of the fiduciary exception? recognizing the fiduciary exception, it is wise for attorneys and plan administrators in jurisdictions that have not yet addressed the exception to nonetheless manage their affairs as if it applies. An important consideration for attorneys thinking strategically will be properly structuring their relationship and interaction with benefits staff with regards to counseling that occurs before an ERISA claim is filed. The first blush reaction to avoid creating anything but the most bland record of counseling and advice sessions is probably an over-reaction and fails to account for the deference courts pay to administrators the "arbitrary and capricious" standard. A plan administrator's decision is considered arbitrary and capricious only when it "is without reason, unsupported by substantial evidence or erroneous as a matter of law." best practice is for the administrator and attorney to instead, consistent with ERISA principles, continue to have the robust discussions warranted by benefits claims, including the pros and cons of the facts, strengths and weaknesses of applicable law, ambiguities in plan documents, etc. The advice and its bases should be recorded and preserved in all mediums to ensure that there is a clear, contemporaneous record of the administrator's non-arbitrary, full and diligent consideration of the claim. In the event the claim is denied and suit is brought, discovery of the record, including the advice of plan counsel, may help justify and support the reviewing court's decision to dismiss the claim. 5 Id. at *11. 6 Geissal v. Moore Medical Corp., 192 F.R.D. 620, 625 9 Thies v. Life Ins. Co. of North America, 768 F. Supp. 2d 11 Shields v. Unum Provident Corp., 2007 WL 764298 at |