journal of pension planning & compliance - Kluwer Law International

30 / JOURNAL OF PENSION PLANNING & COMPLIANCE
represented the fiduciaries, the plan, and the company was asked at trial
to produce memos he had sent to the fiduciaries advising them on their
liability for having previously “borrow[ed] approximately $800,000 . . .
without adequate security” from the plan. 103 The Ninth Circuit held that
the advice regarding the fiduciaries’ personal liability was protected by
the privilege as personal advice, as distinguished from ongoing plan
administration advice. 104
Many district courts have applied the Mett analysis to protect the
attorney-client privilege of various communications, including legal
advice about potential liability in amending and designing a plan, legal
advice related to the potential exposure of the trustees in their personal
capacity, and counsel’s comments on drafts of letters responding to specific
benefit “inquiries, complaints, and claims,” although other general
legal advice concerning the plan was subject to disclosure. 105
Several other courts applied the Mett analysis to claims litigation,
and concluded that, in that context, postdecisional advice was protected
by the attorney-client privilege, although predecisional advice must be
disclosed. 106 For example, in one case where a participant challenged a
plan’s decision to terminate COBRA coverage, the court relied on Mett
in concluding that a line should be drawn based on the date the plan
administrator notified the participant that it was discontinuing COBRA
coverage. 107 Advice provided by the plan’s attorney following that date
was privileged, but advice provided before then was not. Another
court held that an e-mail to in-house counsel regarding overpayment
of benefits was privileged because it was created after the lawsuit had
been filed, and it sought a legal opinion about matters pertaining to the
action. 108 In contrast, documents created before the final denial of benefits
were not privileged, including e-mails and memos to and from the
employer’s corporate counsel regarding the termination of benefits and
the progress of the appeal of the benefits decision. With respect to these
documents, the court reasoned that “[t]here [was] no indication . . . that
[counsel] was consulted for the purpose of defending [the employer]
against any decision made as to Plaintiff’s claim. Rather, it appears
that [counsel] was consulted in the context of the claims review process
itself.” 109 Adopting a similar approach, the court in Lewis v. UNUM
Corp. Severance Plan 110 found that the attorney-client privilege did not
shield advice given by inside and outside counsel during a predecisional
administrative meeting concerning the participant’s claim for severance
benefits. The court rejected the argument that the advice was privileged
because it had been rendered to defend the plan fiduciaries against a
future claim. If such an argument were accepted, the court reasoned,
a beneficiary could never discover the predecisional legal advice of the
plan administrator’s counsel. Instead, the court concluded that denying