ERISA Lawyers: The Exceptionally Privileged Few

Many litigators take two things for granted beyond death and taxes: first, that under the attorney-client privilege, they can freely communicate with their clients either electronically or in writing without fear of having to turn over their communications to other parties in litigation; and second, that under the attorney work-product privilege, the notes or memoranda created by the attorney need not be produced at the request of an opposing litigant. However, those who have handled ERISA fiduciary litigation matters recently might have learned that blind faith in the efficacy of these privileges may lead to disaster in the courtroom and to uncomfortable conversations with malpractice carriers.

Attorney-Client Privilege

The attorney-client privilege shields from third parties confidential communications between an attorney and client for the purposes of seeking and obtaining legal advice. It is the oldest of the privileges for confidential communications known to common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client

Attorney Work-Product Privilege

In Hickman v. Taylor, 329 U.S. 495 (1947), the U.S. Supreme Court recognized the attorney work-product privilege, whereby information obtained or produced by or for attorneys in anticipation of litigation may be protected from discovery under the Federal Rules of Civil Procedure. The privilege enables attorneys to prepare for and pursue litigation without fear that their strategy and preparation will be available to their adversaries. The plaintiff in Hickman sought, without asserting necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties. As such, the court held that it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. In performing his or her various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.

Fiduciary Exception to Privileges

In Riggs Nat. Bank of...