journal of pension planning & compliance - Kluwer Law International

34 / JOURNAL OF PENSION PLANNING & COMPLIANCE
ERISA fiduciaries must identify the “true” client and whether the representation
will be regarded as joint representation. The lawyer should
clarify to those involved whether the employer, union, plan, trustee(s),
or other fiduciaries, beneficiaries—or some or all—are clients and how
that will affect the application of the attorney-client privilege. The lawyer
should take care not to jeopardize attorney-client privilege protection
and also recognize that the application of the attorney-client privilege
will vary as circumstances change. Lawyers representing plan beneficiaries
in litigation against a plan, plan sponsor(s), trustee(s), or other fiduciaries
need to analyze the relationships and activities of the defendants
and the context of communications between the defendants and their
counsel to ascertain which communications are vulnerable to discovery.
NOTES
1. See Model Rules of Professional Conduct R. 1.6 (as amended in 2003). For example, commentary
to the Model Rules observes that the obligation of confidentiality requires a lawyer
to protect against waiver of the privilege and invoke the privilege when it is applicable [R. 1.6
cmt. [13]].
2. Id. R. 1.4(b) (as amended in 2002).
3. See id . R. 1.1 (as amended in 2002).
4. See id . R. 1.3 (as amended in 2002).
5. 29 U.S.C. § 1001 et seq.
6. Robert W. Tuttle, “The Fiduciary’s Fiduciary: Legal Ethics in Fiduciary Representation,” 1994
Ill. L. Rev. 889 (1994). Many of the ERISA cases draw support from earlier trust law cases.
One of the most frequently cited of the trust law cases is Riggs Nat’l Bank of Wash., D.C. v.
Zimmer, 355 A.2d 709 (Del. Ch. 1976), where the court wrote:
As a representative for the beneficiary of the trust which he is administering, the trustee
is not the real client in the sense that he is personally being served. And, the beneficiaries
are not simply incidental beneficiaries who chance to gain from the professional services
rendered. The very intention of the communication is to aid the beneficiaries. The trustees
here cannot subordinate the fiduciary obligations owed to the beneficiaries to their
own private interests under the guise of attorney-client privilege. The policy of preserving
the full disclosure necessary in the trustee-beneficiary relationship is here ultimately more
important than the protection of the trustees’ confidence in the attorney for the trust. . . .
The fiduciary obligations owed by the attorney at the time he prepared the memorandum
were to the beneficiaries as well as to the trustees. In effect, the beneficiaries were the
clients of [the attorney] as much as the trustees were, and perhaps more so.
Id . at 713–714 (emphasis in original).
7. See Fed. R. Evid. 501 (recognizing common law privileges). In Mohawk Industries v.
Carpenter, 558 U.S. __, 130 S. Ct. 599 (2009), the Supreme Court resolved a conflict among
the courts of appeals as to whether a district court’s order to produce materials asserted to
be protected by the attorney-client privilege is immediately appealable. Federal law authorizes