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(District of New Jersey D.C. 01-cv-04183) - page 21 / 30

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These two exceptions to the fiduciary exceptions share a common justification – both allow the attorney-client privilege to remain intact for an ERISA fiduciary when its interests diverge sufficiently from those of the beneficiaries that the justifications for the fiduciary exception no longer outweigh the policy underlying the attorney-client privilege. The beneficiaries are no longer the real clients, and disclosure of attorney-client communications is no longer an obligation.

ERISA fiduciaries, however, come in many shapes and sizes, and we do not believe that the logic underlying the fiduciary exception applies equally to all. We conclude that the fiduciary exception does not apply to an insurer like HN-NJ and its corporate parents because the plaintiff-beneficiaries are not the “real” clients obtaining legal representation.

In some respects, an insurer providing benefits to the beneficiaries of an ERISA-regulated plan is no differently situated than a plan administrator or an ERISA trustee. All are considered to be fiduciaries under ERISA, and all owe duties of

loyalty and care to fiduciaries, they must

their beneficiaries. act in furtherance of

Because they are their beneficiaries’

interests. insurance

Nonetheless, significant differences exist between company fiduciaries such as HN-NJ and other ERISA

fiduciaries

to

whom

the

fiduciary

exception

has

been

applied.

1. Identity of the Client

The first significant difference is the identity of the entity for whom the legal advice is given. When a contractual service provider such as HN-NJ obtains legal advice regarding the

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