Litigation: Who else might be listening?

A notable exception to the attorney-client privilege may affect litigation pertaining to employee benefit plans.

A central role of counsel is to provide legal advice to the client. As any law student knows, the communications transmitting legal advice are regularly protected should they be subject to litigation. However, there is a potentially significant exception that comes into play when the advice is provided in the context of employee benefit plans. That is the fiduciary exception to the attorney-client privilege—an exception that could otherwise expose counsel to discovery of their communications.

The elements of the attorney-client privilege are well-known: a confidential communication made between an attorney and his client for the purpose of obtaining or providing legal advice. The Supreme Court has long recognized that this privilege serves the salutary goal of affording “full and frank” communications between a lawyer and his client. But the goals served by the privilege are not absolute.


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Jamie Fleckner

Jamie Fleckner is a partner in Goodwin Procter’s Litigation Department and heads the firm’s ERISA Litigation Practice. He can be reached at

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