journal of pension planning & compliance - Kluwer Law International

32 / JOURNAL OF PENSION PLANNING & COMPLIANCE
Lewis because these consolidated lawsuits include a count against the
[plan fiduciary] personally for breach of fiduciary duty.” 117
Mutual Versus Divergent Interests
Some cases have suggested that the fiduciary exception to the
privilege only applies where there is a mutuality of interest between
the parties, and therefore does not apply to fiduciary communications
with plan counsel after the interests of the fiduciary and plan beneficiaries
diverge. For example, the Fifth Circuit affirmed the findings of a
magistrate judge that the attorney-client privilege barred disclosure of
communications between the administrator of a plan and outside trial
counsel for the plan sponsor, reasoning that there had never been the
“mutuality of interests” between the parties required for the fiduciary
exception to apply, as all the communications with trial counsel were
made for the purpose of defending the lawsuit and did not deal with
plan administration. 118 In the same case, the magistrate found that,
while the fiduciary exception to the attorney-client privilege permitted
disclosure of communications between the sponsor’s regular in-house
counsel and the plan administrator that occurred before suit was filed,
the exception was inapplicable to similar communications that occurred
after suit was filed, because the interests of the parties diverged at that
point. 119 In another case, a district court held that the fiduciary exception
to the privilege permitted disclosure of communications between
a bank that was serving as plan trustee and a law firm that represented
the bank, but that the exception was applicable only to communications
about matters of plan administration, and would not apply to matters
on which there was a potential conflict or divergence of interests
between the bank trustee and the beneficiaries. 120 These cases were all
decided prior to Mett and would appear to be subsumed in its rationale,
where it applies. 121
A post- Mett case, in which the plaintiffs had noted that they did
not seek to impose personal liability on the plan administrator, held
that the fiduciary exception to the attorney-client privilege was warranted
when the documents sought by plan beneficiaries were created
in the predecisional phase of the plan administrator’s decision and
because the administrator invoked the attorney-client privilege against
the plan beneficiaries. 122 The magistrate judge had declined to apply
the fiduciary exception on two grounds: (1) “Plaintiffs [were] former
employees of the Defendant employer who had already begun to receive
pension benefits, so that they and the plan administrator would invariably
be in an ‘adversarial’ posture as soon as the plan administrator
commenced the inquiry whether these benefit payments were erroneous
and should be recalculated”; and (2) “at least some of Plaintiffs were