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(District of New Jersey D.C. 01-cv-04183) - page 19 / 30





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Donovan v. Fitzsimmons, 90 F.R.D. 583, 585 (N.D. Ill. 1981). The court relied on both Garner and Riggs to hold that, where beneficiaries sue their fiduciaries alleging breaches of fiduciary duty, the attorney-client privilege does not attach to legal advice rendered to the fiduciaries for assistance in the performance of fiduciary duties. Id. at 585-86. Most notably, the court recognized that the Garner rule might not apply in every fiduciary situation but found it applicable to the ERISA fiduciaries before it because of the strong parallels to the trustee situation in Riggs. Id. at 586.

It is not surprising that the court found the analogy between trust law and ERISA to be apt; the Supreme Court has recognized that fiduciary duties under ERISA “draw much of their content from the common law of trusts, the law that governed most benefit plans before ERISA’s enactment.” Varity Corp. v. Howe, 516 U.S. 489, 496 (1996).

The following year, another federal district court applied the fiduciary exception in an ERISA action. See Washington- Baltimore Newspaper Guild, Local 35 v. The Washington Star Co., 543 F. Supp. 906 (D.D.C. 1982). For our purposes, the case is most significant for the broad, sweeping language with which the court asserted that “[w]hen an attorney advises a fiduciary about a matter dealing with the administration of an employees' benefit plan, the attorney's client is not the fiduciary personally but, rather, the trust's beneficiaries.” Id. at 909. On its face, this language suggests that the court’s holding applies to any ERISA fiduciary acting in its fiduciary capacity, regardless of whether the fiduciary is a plan administrator, trustee, or a limited-purpose statutory fiduciary. Such a reading


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