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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    ERISA

Date & Time
  • event Date

    Wednesday, February 16, 2022

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course 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.

Faculty

David R. Johanson
Senior Partner
Hawkins Parnell & Young

Mr. Johanson assists clients in general corporate matters and in employee ownership, benefit, ERISA, and related business matters, with an emphasis on executive compensation, equity incentive plans, non-qualified deferred compensation, ESOPs, ESOP transactions, mergers and acquisitions and related tax planning, and business succession and estate planning. He defends ERISA fiduciaries, plan sponsors, selling shareholders, and investment advisers in ERISA litigation matters involving ESOPs and business transactions in federal and state courts throughout the country in a wide range of controversies covering ERISA fiduciary responsibilities, ESOP valuation disputes, disclosure obligations, investment issues, and tax matters. He has extensive experience in negotiating ESOP, ERISA, and other issues with government regulatory agencies and in representing ERISA fiduciaries in litigation. Recognized nationally for his experience and expertise in the ESOP and executive compensation field, he is a past chair of the legislative and regulatory advisory committee of The ESOP Association. 

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Craig C. Martin
Chairman, Midwest
Willkie Farr & Gallagher, LLP

Mr. Martin serves as Chairman, Midwest for the firm, a member of the Executive Committee, and a partner in the Litigation Department. A leading national trial lawyer, his clients include major Chicago companies and some of the nation’s most influential families, and he regularly appears as lead counsel in trials and appeals in state and federal courts as well as in domestic and international arbitrations. Mr. Martin also counsels boards and board committees of public and private companies and law firms on a variety of sensitive and complicated matters, and conducts board and management-driven investigations involving various subjects domestically and internationally.

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Description

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 and 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, as well as 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.

Outline

  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

Benefits

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 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?