"Employee Rights Lawyer Orlando Florida - PDF"
817 ALI-ABA Course of Study Fundamentals of Employee Benefits Law March 5 - 7, 2009 Orlando, Florida Ethical Issues in Representing Employee Benefit Plans By Cynthia A. Van Bogaert Boardman, Suhr, Curry & Field LLP Madison, Wisconsin 818 2 819 ETHICAL ISSUES IN REPRESENTING EMPLOYEE BENEFIT PLANS By Cynthia A. Van Bogaert Boardman, Suhr, Curry & Field LLP I. Introduction. Ethical issues facing employee benefits lawyers can get complex. Fiduciary duties require special analysis. A. Legal ethics is defined in Black's Law Dictionary 913 (8th ed. 2004) as the minimum standards of appropriate conduct within the legal profession, including the duties that attorneys owe one another, their clients, and the courts. It also may refer to the written regulations governing those duties. State rules regulating lawyers may address, inter alia, client confidentiality, conflicts of interest, multiple representation, crime, fraud, and the effects of other laws. B. Resources that may be helpful include: 1. The American Bar Association ("ABA") Model Rules of Professional Conduct (2008) (http://www.abanet.org/cpr/mrpc/mrpc_toc.html, last visited 1/13/2009). These rules have been adopted by many states, but there are variations from the ABA Model Rules of Professional Conduct. See: http://www.abanet.org/cpr/jclr/home.html (last visited 1/13/2009) and http://www.abanet.org/cpr/jclr/ethics_2000_status_chart.pdf (last visited 1/13/2009) for information on the status of a particular state regarding adoption of the ABA Model Rules of Professional Conduct. 2. The American Law Institute's Restatement of the Law Governing Lawyers ("Restatement"). Note that the purpose of the Restatement is not only to restate, but also to influence or nudge the direction of the developing case law in a particular direction. Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: The Lawyer's Deskbook on Professional Responsibility, Section 1-3(a), (2008). C. This outline does not address any specific state requirements. Lawyers should check their state professional responsibility rules. D. Note that the ABA Model Rules of Professional Conduct assume that a larger legal context shapes the lawyer's role. This context includes laws defining specific obligations of lawyers and substantive and procedural law in general. (ABA MODEL RULES OF PROF'L CONDUCT Scope Statement  (2008).) II. Who is the client? To make sure that a lawyer is properly meeting his or her obligations to a client, the basic first step for a lawyer is to identify the client. For a lawyer working on employee benefits matters, the lawyer commonly may be working for the employer, plan, officer of the employer, fiduciary, participants, or a service provider. 1 820 A. Employers. When the lawyer is working for a plan sponsor that is a corporation or other non-person entity, the lawyer works through the entity's duly authorized constituents. See MODEL RULES OF PROF'L CONDUCT R. 1.13 (2008). In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a lawyer must explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. MODEL RULES OF PROF'L CONDUCT R. 1.13(f) (2008). B. Multiple Representation Issues. See MODEL RULES OF PROF'L CONDUCT R. 1.7 (2008) (Conflict of Interest: Current Clients). 1. Disqualification of attorney is a risk. Schiffli Embroidery Workers Pension Fund v. Ryan, Beck & Co., 869 F. Supp. 278, 1944 WL 668231 (D.N.J. 1994). (Attorney found to represent both Fund and trustee.) III. Limits on Attorney-Client Privilege. Fiduciary status may limit the degree of privilege. This is referred to as the "fiduciary exception." Participants in a plan may have rights. A. Washington-Baltimore Newspaper Guild, Local 35 v. Washington Star Co., 543 F. Supp. 906 (D.D.C. 1982). Trustees owe duty of loyalty to participants. When advising a fiduciary about a matter dealing with plan administration, the client is not the fiduciary personally, but rather the trust's beneficiaries. Id. at 909. No attorney- client privilege against disclosure to participants. B. In re Long Island Lighting Co., 129 F.3d 268 (2d Cir. 1997). Non-fiduciary matters are not subject to fiduciary exception. C. U.S. v. Mett, 178 F.3d 1058 (9th Cir. 1999). Limits on fiduciary exception for personal defense. D. Some courts have required a showing of "good reason" to limit attorney-client privilege. See Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). E. Wachtel v. Health Net, Inc., 482 F.3d 225 (3d Cir. 2007). Third Circuit ruled that the fiduciary exception does not apply to an insurance company, which, although a fiduciary, contracts with multiple benefit plans to provide health insurance, pays claims using its own assets, and obtains legal advice using its own funds. IV. Work-Product Protection. Hickman v. Taylor, 329 U.S. 495 (1947); Upjohn Co. v. U.S., 449 U.S. 383 (1981). May protect documents prepared in anticipation of litigation. A. This protection can help protect materials prepared by non-lawyers if the lawyer retains the expert. V. Steps to Take to Limit Problems Relative to Client Identity and to Protect Against Loss of Privilege. A. Engagement letter should clearly identify the client. 1. Address possible loss of privilege. B. Update scope and matter. C. Watch for constituent conflicts. 2