Rutledge v. Seyfarth, Shaw, Fairweather, & Geraldson, 210 F.3d 1212 (9^th Cir. 2000).-In determining whether the district court abused its discretion in awarding fees and costs after an allegedly improper removal action (based on ERISA), this court was faced with the central question of whether ERISA preempted a state law claim for excessive fees against an attorney.

This court surveyed at length the case law of ERISA preemption, but in the end declined to develop its "own test describing the outer bounds of ERISA preemption, or to determine in every particular how these varied formulations from recent cases fit together."  “The resolution of the case before us does not require it. Instead, we observe only that under each test, a core factor leading to the conclusion that ERISA preempted a state law claim is that the claim bears on an ERISA-regulated relationship.”

Generally, attorneys rendering legal and consulting advice to a plan will not be deemed a fiduciary unless they exercise authority over the plan "in a manner other than by usual professional function," and therefore will not susceptible to an ERISA lawsuit for breach of fiduciary duty.  However, other ERISA-governed relationships, aside from fiduciary ones, can potentially trigger preemption.  Concha v. London, 62 F.3d 1493 (9^th Cir. 1995) held that state-law claims against a non-fiduciary for prohibited transactions "relate to the administration of a plan covered by ERISA" and ERISA preempts them.  Concha, 62 F.3d at 1504.

Relying on this reasoning, this court pointed out that the state law allegation at issue—that Seyfarth charged legal fees to the Plans in excess of an amount agreed upon by the parties—is  precisely the sort of prohibited transaction governed by ERISA, and ERISA preempts it.  The state law claim interferes with this carefully spelled-out relationship by providing an alternative route for beneficiaries and participants to rectify excessive fees.  The reason that ERISA preempts a claim involving attorneys’ fees, but not necessarily attorney malpractice, is that congress intended ERISA to govern relationships involving the  protection of a plan's participants and beneficiaries from a depletion of plan assets through shady, inside deals and by providing a consistent rule of reasonableness governing fees for services across jurisdictions.