UNITED STATES OF AMERICA v. METT, 1999 U.S. App. LEXIS 11124 (9th Cir. June 1, 1999)-Before: Betty B. Fletcher, and A. Wallace Tashima, Circuit Judges, and James K. Singleton, * District Court Judge.
The Ninth Circuit has joined a number of other courts in recognizing a "fiduciary exception" to the attorney-client privilege. See United States v. Doe, 162 F.3d 554, 556-57 (9th Cir. 1998); United States v. Evans, 796 F.2d 264, 265-66 (9th Cir. 1986). This exception had its genesis in English trust law, but has since been applied to numerous fiduciary relationships. See generally Charles F. Gibbs & Cindy D. Hanson, The Fiduciary Exception to a Trustee's Attorney/Client Privilege, 21 ACTEC NOTES 236 (1995). As applied in the ERISA context, the fiduciary exception provides that "an employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration." Becher v. Long Is. Lighting Co. (In re Long Is. Lighting Co.), 129 F.3d 268, 272 (2d Cir. 1997).
On the one hand, where an ERISA trustee seeks an attorney's advice on a matter of plan administration and where the advice clearly does not implicate the trustee in any personal capacity, the trustee cannot invoke the attorney-client privilege against the plan beneficiaries. On the other hand, where a plan fiduciary retains counsel in order to defend herself against the plan beneficiaries (or the government acting in their stead), the attorney-client privilege remains intact. Burden of proving that attorney-client privilege does not apply falls on the person trying to pierce the privilege.
Court held the memorandums at issue do not relate to plan administration. Therefore attorney-client privilege applies.
