journal of pension planning & compliance - Kluwer Law International

Attorney-Client Privilege
Issues in Employee
Benefits Practice: Who
Is the Client and When?
GWEN THAYER HANDELMAN
Gwen Thayer Handelman is Scholar-in-Residence at Nova Southeastern
University Shepard Broad Law Center in Fort Lauderdale,
Florida. She is a Fellow of the American College of Employee Benefits
Counsel and served for many years as Co-Chair of the American
Bar Association Section of Labor and Employment Law Employee
Benefits Committee Ethics Subcommittee. She currently Co-Chairs
the Labor Section’s Committee on Ethics and Professional responsibility.
This paper was originally prepared for the 2010 Midwinter
Meeting of the Ethics and Professional Responsibility Committee
March 25-27, 2010, in Coronado, California. Professor Handelman
acknowledges the significant contributions to this paper by Jeffrey
Smith McLeod, Stember Feinstein Doyle & Payne LLC, Pittsburgh,
Pennsylvania, and Michelle L. Roberts, Springer-Sullivan & Roberts
LLP, Oakland, California.
E
mployee benefits practice is particularly likely to involve
entity representation, multiple representation, and fiduciary
representation, all of which give rise to variations in the
application of the attorney-client privilege. Although the
attorney-client privilege is an evidentiary rule rather than an ethical
standard, familiarity with the privilege is essential to fulfilling a
plan or plan sponsor’s lawyer’s obligation of confidentiality 1 and
duty to provide information to a client “to the extent reasonably
necessary to permit the client to make informed decisions regarding
the representation” 2 and a plaintiff’s lawyer’s duties of competence 3
and diligence. 4
In a variety of settings involving employee benefit plans governed
by the Employee Retirement Income Security Act of 1974 (ERISA), 5
courts have considered whether particular communications come within
the scope of the attorney-client privilege. Most notably, attorney- client
17