(Possible) Good News For ERISA Fiduciaries

Law360, New York (May 3, 2011, 10:45 AM EDT) -- Defendants in Employee Retirement Income Security Act breach of fiduciary duty cases have increasingly struggled with the plaintiffs’ bar’s aggressive efforts to expand the reach of the fiduciary exception to the attorney-client privilege.

Under the common-law fiduciary exception, a fiduciary of a trust cannot withhold privileged documents from the trust’s beneficiaries where the legal advice was sought and received in connection with fiduciary matters, such as trust administration.

Courts have widely, but unevenly, applied the exception in some cases to require ERISA fiduciaries to produce attorney-client...
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