What is the fiduciary exception? Protecting privilege when advising on employee benefit plan issues

Examining the fiduciary exception with Solis v. Food Employers Labor Relations Ass’n

It is increasingly important today for companies of all sorts to make sound decisions regarding the benefits they offer to employees — from health, life, and disability coverage to retirement and pension plans. The rules governing employee benefits are complex, and it pays to seek good legal advice.

Employers should be aware, however, that some courts have applied the “fiduciary exception” to the attorney-client privilege to certain communications between counsel and the administrators of employee benefit plans. The exception does not apply to all such communications, so it is important to understand which types of communications will be privileged and which might not. The need to address these issues may arise in the context of responding to a discovery request in a benefits dispute or in complying with a document subpoena from a regulatory agency.

Contributing Author

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Andrew P. Sherrod

Andrew P. Sherrod is a partner in the litigation section of Hirschler Fleischer (Richmond, Va.), who has an active practice before federal and state courts,...

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