would be unjustified. The court’s analysis focused on the responsibilities of trustees; the defendants in that case were the trustees and the sponsor of an ERISA-regulated plan. The court simply did not consider whether the fiduciary exception applied with equal force to all ERISA fiduciaries, its broad language notwithstanding.
Since Donovan and Washington Star were decided, many other courts have applied the fiduciary exception to ERISA fiduciaries. Just as the Riggs court recognized that the exception was premised on both the beneficiaries’ right to inspection and their identity as the “real” clients, courts applying the fiduciary exception to ERISA fiduciaries have cited these same rationales. See Mett, 178 F.3d at 1063. These courts also have recognized two types of situations in which the fiduciary exception does not apply. First, under the “liability exception,” a fiduciary, seeking the advice of counsel for its own personal defense in contemplation of adversarial proceedings against its beneficiaries, retains the attorney-client privilege. Mett, 178 F.3d at 1063-64; Riggs, 355 A.2d at 711. Second, under the “settlor exception,” courts distinguish between fiduciary acts and settlor acts, the former being discretionary acts of plan
modification, or termination of an employee benefit plan. See 29 U.S.C. § 1002(21)(A)(iii); Aetna, 542 U.S. at 220; Lockheed
Corp. v. Spink, 517 U.S. 882, 891 (1996).
exception does not apply to settlor acts because such acts are more akin to those of a non-fiduciary trust settlor than they are to those of a trustee. See Lockheed, 517 U.S. at 891; Bland, 401 F.3d at 787-88.