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?