:: Fiduciary Exception Eclipses ERISA Fiduciary’s Claim Of Attorney Client Privilege

As applied by the courts in cases brought under ERISA, the “fiduciary” exception to the attorney-client privilege “comes into play when . . . the administrator for an ERISA plan invokes the attorney-client privilege against the plan beneficiaries.” Lewis v. UNUM Corp. Severance Plan, 203 F.R.D. 615, 619 (D. Kan. 2001). “This fiduciary exception derives from the principle that when an attorney advises a plan fiduciary about the administration of an employee benefit plan, the attorney’s client is not the fiduciary personally but, rather, the trust’s beneficiaries.” Lewis, 203 F.R.D. at 619.

Redd v. Bhd. of Maint. of Way Emples. Div. of the Int’l Bhd. of Teamsters
, 2009 U.S. Dist. LEXIS 46288 ( E.D. Mich. June 2, 2009)

This opinion involves consideration of the dimensions of the fiduciary exception to attorney-client and work product privileges. The issue arose in the context of district court review of plaintiffs’ objections to a magistrate judge’s ruling on a motion to compel.