Application of the attorney-client privilege in the ERISA context is full of traps for the unwary. During this 60-minute session, we will provide practical insight on how to minimize the risk that communications between plan sponsors and fiduciaries with attorneys will lose the protection of the attorney-client privilege due to the application of the fiduciary exception doctrine.
First, we will discuss how the fiduciary exception has been traditionally applied — and not applied — in the ERISA context. Next, we will review the U.S. Supreme Court’s decision in U.S. v. Jicarilla to see what the Court had to say about the exception and how the decision might be used to contest its application. And, lastly, we will offer practice pointers for how best to preserve the attorney-client privilege in the ERISA context.