ERISA Counsel and Attorney-Client Privilege: What You Don't Know About the "Fiduciary Exception" Could Hurt You

January 8, 2020 at 10:00am11:30am (PDT)

This CLE webinar will examine ERISA fiduciary exceptions to attorney-client privilege, the majority view, and how some jurisdictions differ. The panel will explain best practices for preserving the privilege given conflicting court rulings on when the fiduciary exception applies and when it does not.


Courts and ERISA plan fiduciaries and beneficiaries grapple over the critical issue of whether a fiduciary exception applies to privileged communications between fiduciaries of ERISA-governed plans and their or the plan's legal counsel.

Whether the fiduciary exception applies is often subject to a nuanced and fact-intensive judicial inquiry. Counsel for fiduciaries must understand situations when the fiduciary exception may or may not apply through a complex analysis of jurisdiction, as well as content, timing, and reason for the communication.

Listen as our authoritative panel of ERISA attorneys analyzes the parameters of the fiduciary exception and provides approaches to preserve attorney-client privilege when communicating with plan fiduciaries, and explains how to assert and defend the privilege in litigation. The panel will offer lessons from recent rulings and arguments for and against the fiduciary exception to keep confidences protected.


  1. The attorney-client privilege
  2. Parameters of ERISA fiduciary exception
    1. Who is a fiduciary?
    2. Who is the client?
  3. Scope of fiduciary functions subject to the exception and limitations of exception
  4. Work product
  5. Recent court rulings on the ERISA fiduciary exception
  6. Best practices for preserving the privilege


The panel will review these and other key issues:

  • What lessons do court rulings offer counsel in developing best practices and advising ERISA plan fiduciaries to protect communications with counsel?
  • In what circumstances can counsel clearly defend the privilege in fiduciary conduct and communications--and how can counsel navigate the grey areas?
  • How is work product distinguished from client communications--and how can counsel keep work product shielded from disclosure?