Health Net companies, except to note that HN-NJ is not a plan administrator or trustee and that its fiduciary status arises out of its discretionary authority over the payment of benefits owed to plan beneficiaries.
Health Net contends that recognized at common law does not
the fiduciary exception apply to every entity which
is designated a fiduciary under ERISA. Instead, it argues that a
such as HN-NJ – an insurance with multiple employee benefit plans
company to provide
of the fiduciary exception. To our considered whether the fiduciary
knowledge, no court has exception to the federal
attorney client privilege fiduciaries under ERISA. confront.
applies with equal force to all It is that question which we now
A. History and Development of the Fiduciary Exception
We will begin our consideration with an historical review of the attorney-client privilege and the development of the fiduciary exception. In sixteenth-century England, the right to testimonial compulsion was still in its infancy. Along with the emergence of this right to compel testimony there also arose an
the attorney-client 2290 (McNaughton
privilege. rev. 1961).
8 J. WIGMORE, Jurists originally
justified the privilege as necessary to protect “point of honor” to refrain from divulging the
an attorney’s secrets of his