journal of pension planning & compliance - Kluwer Law International

20 / JOURNAL OF PENSION PLANNING & COMPLIANCE
In contrast, a magistrate found the privilege applicable to some,
but not all, of a series of memoranda exchanged between an actuarial
firm, the company’s attorney, and the company concerning benefit
changes with respect to which both the actuary and the attorney were
rendering advice. 22 The magistrate ruled that the attorney-client privilege
applied only to documents that were prepared to assist the lawyer
in rendering legal advice and not to those meant to aid the business
decisions of the company’s officers. The magistrate specifically rejected
the claim that all communications from the actuary to the attorney
were necessarily related to the attorney’s performance of her legal advisory
function, pointing out that the lawyer’s role was not solely legal,
because she was also providing the client with “business-related factual
data.” The magistrate also held that the attorney-client privilege did
not cover a summary of legal research performed by a nonattorney at
the actuarial firm, where the research had not been requested by the
company’s attorney.
Another court held that the attorney-client privilege did not apply
to communications made at a committee meeting attended by an inhouse
attorney regarding a decision to fire an employee. 23 The former
employee claimed, inter alia , that his employer fired him to interfere
with his ERISA rights and in retaliation for taking sick leave. In-house
counsel was a nonvoting member of the personnel committee that
decided to terminate the employee. The court noted that, when legal
and business advice are intertwined, the party claiming the privilege
must show that the legal advice predominated. Because the court found
that the lawyer was serving as a member of the committee in a nonlegal
capacity, the employer had to make a “clear showing” that the lawyer
gave advice in a legal capacity for that advice to be privileged. In a
similar case, a district court held that mere attendance of counsel at
an administrative committee meeting where a beneficiary’s claims were
discussed did not render all the proceedings privileged. 24
Another decision found the privilege inapplicable because the
communications related solely to a factual investigation rather than
“legal matters.” 25 The magistrate found that the privilege did not apply
when a senior case manager for an insurer plan administrator e-mailed
a draft denial letter to the insurer’s counsel for review, and the lawyer
edited the letter and provided comments not of a “legal” nature.
Similarly, a district court ruled that letters that individuals charged with
violating ERISA sent to the insurer’s counsel to convince the insurer
to indemnify them and pay for the cost of their defense were not privileged.
26 The court reasoned that the letters to the insurer were not for
the purpose of obtaining legal advice or for use by potential future
defense counsel, because the insureds were seeking counsel of their own