If you have always believed communication with your ERISA Attorney is private and confidential, the truth may surprise you. A recent case finds that fiduciaries are not protected by attorney-client privilege regarding the administration of their plan.
Federal courts have never adopted a consistent precedent with regards to the issue of attorney-client privilege where the attorney provides counsel on the administration of an ERISA covered plan. In Solis v. Food Employers Labor Relations Ass’n, 2011 WL 1663597 (4th Cir. 2011), the Fourth Circuit clarified what communications between a plan fiduciary and attorney could be privileged and therefore protected from legal discovery.
The Fourth Circuit broke down communications between a plan fiduciary and their attorney into two components:
1. Advising a fiduciary on fiduciary matters,
2. Advising a fiduciary on non-fiduciary matters such as settlor functions.
Full text here: Retirement Services Guidance